1

March 13, 2013

Matt Canestrale Via Certified Mail, Return Receipt Requested

President and Chief Executive Officer

Matt Canestrale Contracting, Inc.

276 Bunola River Road

Elizabeth, PA 15037

P.O. Box 234

Belle Vernon

PA 15012-0234

RE: Notice of Violations and Notice of Intent to Sue Matt Canestrale Contracting,

Inc. for Violations of the Clean Streams Law, Air Pollution Control Act, the

Resource Conservation and Recovery Act, the Clean Air Act, and

Pennsylvania's Law Implementing the Requirements of the Surface Mining and

Reclamation Act at the LaBelle, PA Coal Waste Mine Dump in Luzerne

Township, PA

Dear Sir:

We are writing on behalf of the Citizens Coal Council (“CCC” or “Citizens”) to provide

you with notice of their intent to file suit against Matt Canestrale Contracting, Inc. (“MCC”) for

significant and ongoing violations of Pennsylvania’s Clean Streams Law (“CSL”)1 and Air

Pollution Control Act (“APCA”),2 the Resource Conservation and Recovery Act (“RCRA”),

3 the

Clean Air Act (“CAA”),4 and Pennsylvania's law implementing the requirements of the Surface

Mining and Reclamation Act (“PA SMCRA”)5 at MCC’s LaBelle, PA Coal Waste Mine Dump

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(“Mine Dump”), located in Luzerne Township, Pennsylvania.

Disposal of coal ash without adequate isolation from the environment is dangerous,

threatening the health of local communities, making groundwater unsafe to drink, harming

aquatic and other wildlife, and polluting rivers and streams. This unlined Mine Dump covers an

area of just over 500 acres and resembles a volcano of partially mixed mine and coal combustion

waste (“CCW” or “coal ash”) (collectively, the “Waste”). See Figure 1. It is roughly conical

with a pond on the top resembling a “crater” and it slopes down towards the Monongahela River

1 35 P.S. § 691.1 et seq.

2 35 P.S. § 4001 et. seq.

3 42 U.S.C. § 6901 et seq.

4 42 U.S.C. § 7401 et seq.

5 52 P.S. § 1396.1 et seq.

6 The site is described as a “Mine Dump” in topographic maps of the area.

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(“the River”), which surrounds it on three sides to the north, east, and west. See Figure 2. To the

south of the Mine Dump, a stream called Meadow Run lies in a local valley, capturing and

conveying shallow groundwater to the River.

The coal ash disposed of at the Mine Dump is a solid waste that is notorious for

contaminating ground and surface waters with toxic pollutants. Indeed, the FirstEnergy Little

Blue Run coal ash impoundment is scheduled to close because the Commonwealth of

Pennsylvania recognized such effects, prompted by a notice letter the Little Blue Regional

Action Group sent detailing widespread groundwater and surface water pollution.

According to MCC, at the Mine Dump the coal ash is being added to the waste from

historic mining for the purposes of treatment and reclamation. Despite MCC’s efforts to treat the

historic waste with additional coal ash waste, leaching from the Waste has continued unabated.

Rainfall flows through the Waste and becomes contaminated leachate. That leachate then flows

into the shallow groundwater. That groundwater is driven by the topography and therefore flows

out of the Mine Dump radially, including below the adjacent state correctional facility. See

Figure 1. Recent monitoring data show unequivocally that leachate from this Mine Dump is

carrying pollutants from the Waste into the nearby streams. The data also show that shallow

groundwater below nearby residential properties is contaminated by leachate from the Waste.

As is more fully explained below, MCC is violating RCRA by transporting and disposing

of coal ash, treating the historic waste, and handling the Waste in a manner that may present an

imminent and substantial endangerment to health and the environment. It is also violating the

CSL by discharging pollutants that have polluted and continue to pollute the groundwater, which

is a protected water of the Commonwealth of Pennsylvania. Furthermore, MCC is violating PA

SMCRA by causing water and air pollution in connection with mining, and is violating the Clean

Air Act and Pennsylvania’s APCA by causing major particulate matter pollution impacts that are

affecting local residents as well as workers and prisoners at the SCI Fayette State correctional

facility.

By failing to comply with the environmental laws detailed in the preceding paragraph,

MCC has injured or threatened to injure, and will continue to injure or threaten to injure, the

health, environmental, aesthetic, and economic interests of CCC and its members. These injuries

or risks are traceable to MCC’s violations at the Mine Dump, and redressing those ongoing

violations will redress the Citizens’ injuries or risks.

After providing notice, Citizens are entitled to bring suit against “any person . . . who has

contributed to or who is contributing to the past or present handling, storage, treatment,

transportation, or disposal of any solid or hazardous waste which may present an imminent and

substantial endangerment to health or the environment.”7 In addition, the CSL prohibits the

discharge of substances that cause pollution to surface water or groundwater, and also declares

pollution of groundwater or surface water to be a statutory nuisance.8 Discharges from a mine or

coal refuse disposal area, including post-mining discharges, without a permit or in violation of a

permit are prohibited by section 315(a).9 After providing notice, Citizens may bring suit under

7 42 U.S.C. § 6972(a)(1)(B).

8 35 P.S. §§ 691.301, 691.1, 691.315, 691.401, 691.601(c).

9 35 P.S. § 691.315 (a); Com., Dept. of Envtl. Res. v. PBS Coals, Inc., 534 A.2d 1130, 1136 (Pa. Commw. Ct. 1987).

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this law to abate discharges that cause pollution and the pollution itself.10

PA SMCRA makes it

unlawful to “cause air or water pollution in connection with mining.”11

After providing notice,

Citizens may bring suit under this law to compel compliance.12

Under the APCA, it is unlawful

to “fail to comply with . . . any order, plan approval, permit or other requirement of the

department . . . or to cause air pollution . . .”13

and “any person may commence a civil action to

compel compliance with this act.”14

Similarly, under the CAA, “any person may commence a

civil action . . . against any person . . . who is alleged to have violated . . . or to be in violation of

an emission standard or limitation under this chapter.”15

Emissions standard or limitation

includes “any other standard, limitation, or schedule established under . . . any applicable State

implementation plan approved by the Administrator, any permit term or condition, and any

requirement to obtain a permit as a condition of operations . . . which is in effect under this

chapter . . . or under an applicable implementation plan.”16

These citizen suit provisions also allow the recovery of reasonable attorney and expert

fees in addition to other costs by prevailing plaintiffs. Therefore, Citizens may bring suit to

enjoin illegal discharges of pollution, enjoin waste disposal activities that may present an

imminent and substantial endangerment to health or the environment, abate air and water

pollution and such a potential endangerment, impose civil penalties, recover attorneys’ fees and

costs of litigation, and obtain other appropriate relief.

In accordance with Section 7002(b)(2)(A) of RCRA,17

this letter serves to notify you that

CCC intends to file suit in federal district court any time beginning ninety (90) days after the

certified receipt of this letter.18

This letter serves to notify you that CCC intends to file suit in

federal district court any time beginning sixty (60) days after the postmarked date of this letter in

accordance with Section 601 of CSL, 19

Section 18c of PA SMCRA,20

Section 304(b) of CAA,21

and Section 4013.6(d) of the APCA22

I. BACKGROUND

MCC is the owner and operator of the Mine Dump, which consists of two bituminous

(“gob”) coal piles filled with refuse slurry, which contain forty million tons of refuse. MCC is

disposing coal ash on top of these piles supposedly to “reclaim” the Mine Dump. After

FirstEnergy’s Little Blue Run coal ash impoundment closes at the end of 2016, the Mine Dump

is slated to take over three million tons of additional coal ash waste per year from the Bruce

Mansfield plant. This would be a major expansion of the current operations, which involve

10

35 P.S. § 691.601. 11

52 P.S. § 1396.18f. 12

Id. § 1396.18c. 13

35 P. S. § 4008. 14

Id. § 4013.6(c). 15

42 U.S.C. § 7604(a)(1). 16

Id. § 7604(f)(4). 17

Id. § 6972(b)(2)(A). 18

40 C.F.R. § 254.2. 19

35 P.S. § 691.601(e). 20

52 P.S. § 1396.18c(c). 21

42 U.S.C. § 7604(b). 22

35 P. S. § 4013.6(c).

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receiving up to two hundred thousand tons per year of Waste from the Mitchell and Elrama

plants.23

It is unclear how long or how much fly ash from the Mitchell site was disposed of at

the Mine Dump before or after the Pennsylvania Department of Environmental Protection (“PA

DEP”) determined in March 2000 that this material was too high in arsenic and too acidic to

meet the criteria required for placement at the site.24

A 2009 letter to MCC reflected PA DEP’s

concern that MCC was not aware that pond ash from the Elrama plant and “bottom fly ash” from

the Mitchell plant were no longer certified for use at the site, and modified the CRDA permit

accordingly.25

The most recent ash volume reports submitted by MCC reflect that the refuse site

received 114,751 tons of flue gas desulfurization (“FGD”) material26

from the Mitchell site and

18,344 tons of FGD material from the Elrama site in 2011.27

The FGD Material is characterized

simply as “ash” in maps and reports. While MCC claims that the addition of coal ash to the Mine

Dump is treating the mine waste and remedying the pollution problems that had been caused by

that waste, conditions at the site are not improving and the disposal of coal ash waste under the

guise of remediation puts the health and environment of the LaBelle community in harm’s way

in violation of federal and state and laws.

The Mine Dump has been plagued by stability issues, water pollution from discharges,

run-off, groundwater infiltration, and fugitive particulate matter pollution.28

For example, coal

slurry and wastewater impounded at Ponds 2 and 3 have been contaminating local waters with

pollutants like manganese, sulfates, aluminum, and sulfate well above limits established as safe

by the Commonwealth. Beginning in 1999, PA DEP Inspectors noted that coal ash failed to meet

compaction requirements and that the drainage system installed by MCC—that was supposed to

cure seeps on the eastern side of Slurry Pond 3—actually failed to control leachate leading to

violations of limits established under MCC’s Clean Water Act Permit at Slurry Pond 3.29

PA

DEP has issued violations associated with faulty erosion and sedimentation controls or

exceedances of effluent standards or issues with compaction standards at the Mine Dump in

23

Ash Volume Reports submitted annually by MCC document that the facility received 114,266 tons of “ash” from

the Mitchell Station and 97,370 tons of ash from the Elrama plant in 2010. In 2011, the facility received 114,751

tons of ash from Mitchell Station and 18,344 tons of ash from Elrama. Letter and Coal Ash Annual Report from

Hiram C. Ribblett, P.E., Mine Dump Engineering Consultant, to Martin Picklo, Mining Specialist, PA DEP (Jan

31. 2012) [hereinafter 2012 Ash Report]. 24

Letter from David E. Eberle, Facilities Supervisor, Waste Management, PA DEP, to Nancy D. Pointon, Allegheny

Energy Supply (Mar. 21, 2000). See also Letter from PA DEP to Leo Rajter, Vice President, Allegheny Energy

(Apr. 9, 2008) (“We have reviewed your submittal dated March 28, 2008 for Mitchell Station. This source is not

approved for use at mine sites and has not been approved for several years. Therefore we are treating this

application as a reapproval request.”) (emphasis in original). See also (Name Illegible) Inspector No. 4103, Coal

Refuse Disposal Inspection Report (“Excessive levels of arsenic reported by Allegheny Power and subsequently

disposed of on site.”). 25

Letter from Joseph F. Leone, Chief, Bituminous Mine Permit Section District Mine Operations, PA DEP to Matt

MCC (Nov. 12, 2009) (“It has come to the Department’s attention that the Orion Power-Elrama Station pond ash

and Allegheny Power-Mitchell bottom fly ash are no longer state certified coal ash sources; therefore they cannot

be beneficially used at the LaBelle Site; any disposal of these materials is to cease.”). 26

FGD (also called scrubber sludge) is a product of a process typically used for reducing SO2 emissions from the

exhaust gas system of a coal-fired boiler. 27

2012 Ash Report 28

Matt MCC Contracting, Inc., Phase I Coal Refuse Disposal Permit Application, LaBelle Site, Conceptual Plan, 1-

7 & Module 25, Exhibit 25 (Oct. 15, 1997) [hereinafter 1997 Application] (noting that precipitation infiltration

was “the most serious contributor to the outslope stability problems.”). 29

Inspector 4103 (Name Illegible), PA DEP CRDA Inspection Report (Sep. 3, 1999). See also 1997 Application,

Exhibit 11.5: Design Plans.

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1999, 2002, 2004, 2005, 2007, 2008, 2010, 2011, and 2012.30

Additionally, Mine Safety and

Health Administration (“MSHA”) inspectors have expressed concern that the ash material has a

consistency “like toothpaste”31

and that there are “major erosions at the right groin” of Slurry

Pond 3.32

In addition, only part of one of the gob piles has a clay liner;33

thus there is no

effective barrier to prevent leachate from the Waste from entering groundwater.34

Citizens living and working nearby have also repeatedly complained about dangerous

fugitive particulate matter pollution from the Mine Dump and trucks hauling coal ash without

covers.35

Despite permit requirements and several laws that require trucks to be covered and

prohibit fugitive particulate matter pollution from leaving MCC’s property, citizens have called

and petitioned PA DEP to clean up pollution blanketing their homes, offices, and vehicles with

this dark dust.36

Most recently, on January 23, 2013 residents observed large dust clouds drifting

from the Mine Dump. They telephoned complaints to DEP and documented the event with video

and photographs of the ash deposition, clouds, and trucks hauling coal ash without required

covers.

II. RCRA AND CSL VIOLATIONS

The Mine Dump layout and most of the available monitoring locations are shown on

Figure 2. The locations marked in yellow are locations at which MCC samples surface water or

groundwater. The locations marked in red are locations at which CCC has taken water samples.

MCC’s own monitoring data, supplemented by CCC’s monitoring, show that the leachate from

the Waste may present an imminent and substantial endangerment to human health and the

environment, violating RCRA. In addition, the data show that the Mine Dump is discharging

pollutants to groundwater in Pennsylvania without a permit, violating the CSL. Furthermore,

these past and ongoing discharges have caused the groundwater and surface water around the

impoundment to become polluted, violating the CSL. Until the leaching stops and the existing

contamination is cleaned up, MCC will continue to violate RCRA and the CSL.

30

Inspector 4103 (Name Illegible), PA DEP CRDA Inspection Report (Sep. 3, 1999); Matt MCC Contracting Inc.,PA

DEP Compliance Order No. 021045 (2002) Matt MCC Contracting Inc.,DA DEP Assessment of Civil Penalty,

Compliance Order No. 041014 (2004); Inspector 4127 (Name Illegible), PA DEP CRDA Inspection Report (Jan.

26, 2005);Matt MCC Contracting Inc.,PA DEP Compliance Order Docket No. 071042 (2007); Matt MCC

Contracting Inc.,PA DEP Compliance Order Docket No. 081001 (2008); Matt MCC Contracting, Inc., Mine

Safety and Health Administration Citation No. 7020236 (2010); Inspector 4131 (Name Illegible), PA DEP CRDA

Inspection Report (June 14, 2011); Inspector 4131 (Name Illegible), PA DEP CRDA Inspection Report (Oct. 24,

2012). 31

Record of Call between Dam Safety and MSHA (May 4, 2009). 32

Operator Weekly Inspection (Aug. 12, 2010). 33

Cross sections of the site do not differentiate the clay “liner” from other regolithic material identified as including

topsoil, subsoil, clay, and weathered rock. Earthtech, Inc. Geologic Cross Sections F-F’ and B-B’, Permit

Application (Feb. 4, 1998). 34

1997 Permit Application, Module 12. ¶12.1(a). . 35

EPA has found that there is a “strong likelihood” that handling dry coal combustion waste material will lead to

NAAQS being exceeded for particulate matter, unless measures are taken to control dispersal on a daily basis.

EPA OSWER, “A Screening Assessment of the Risks Posed by Coal Combustion Landfills” (Draft), 11–12 (May

2010). 36

See, e.g., PA DEP Investigation Reports , Complaint ID No. 268220 (Dec. 14, 2009); Complaint ID No. 275307

(Oct. 29, 2010); Complaint ID No. 284867 (Nov. 15, 2011). .

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Drainage from the site, whether originating from outfalls or seeps, is characterized by

high levels of waste-related contaminants. “Under-drain” (at GW-5) and “refuse pile” (at GW-6)

monitoring points may offer the clearest evidence of leachate composition at the site. Levels of

sulfates and specific conductance are very high at these points. These trends are mirrored in sites

downgradient from GW-5 and GW-6. For example, trends in specific conductance and sulfate

levels at SW-17 shadow those upstream GW-5, at lesser concentrations. These trends are, in turn,

mimicked at SW-8, downgradient from SW-17, at even lower levels. While there is only limited

data available from the outfalls located nearest to these points (001 & 002), samples collected

from these points are similarly high in sulfate and specific conductance levels.

i. MCC’s Ongoing Pollution of Surface Waters of the Commonwealth May

Present an Imminent and Substantial Endangerment to the Environment.

Four streams have their headwaters at or close to the Mine Dump and run into the

Monongahela River. Figure 4B. All of these streams are polluted by ionic pollution (measured

by conductivity and total dissolved solids) and sulfate leaching from the Waste. Figures 3A, 3B,

4A, 4B, 5A &5B. These pollutants are associated with both mine waste and coal ash waste.

Orange colored seeps that originate at the Mine Dump discharge into at least two of these

streams, which are discolored orange below these discharges. In addition, some measurements

show elevated boron levels. Figures 6A & 6B. These discharges cannot have originated at

historic mines below the Mine Dump because the old mine seams are below the level of the

groundwater and surface water samples. Furthermore, documents prepared for MCC and

previous operators confirm that the leachate from the Mine Dump drains into old mine-workings,

providing an additional path for pollutant transport from the Mine Dump that has not yet been

mapped or sampled. Finally, to illustrate the background for conductivity, Figure 3 shows that

conductivity in the River hovers around 250 µS/cm, though occasionally reaches values up to

500 µS/cm.37

EPA recently stated that “high levels of salts, measured as TDS38

or conductivity, are a

primary cause of water quality impairments downstream from mine discharges.”39

Sulfates are

one of the types of salts associated with high conductivity.40

Accordingly, EPA scientists have

developed an aquatic life benchmark identifying “that substantial and increasing aquatic life

impacts occur as conductivity increases beyond 300 μS/cm.”41

This benchmark was based on

field samples taken in the Central Appalachian and Western Allegheny Plateau regions of

Western Virginia and Kentucky.42

Because the Mine Dump is also located in the Western

37

Conductivity is expressed in S or Siemens, which are identical to mhos. http://www.tech-faq.com/siemens.html;

Data for USGS site 03063000 available at

http://nwis.waterdata.usgs.gov/pa/nwis/uv?cb_00010=on&cb_00095=on&cb_00065=on&cb_00400=on&cb_00

065=on&format=gif_default&period=&begin_date=2012-11-01&end_date=2013-03-04&site_no=03063000. 38

TDS means total dissolved solids, an alternative measure of ionic pollution to specific conductance. 39

EPA, Memorandum re: Improving Review of Appalachian Surface Coal Mining Operations under the Clean Water

Act, National Environmental Policy Act, and the Environmental Justice Executive Order, Appendix 1, p. ii (July

21, 2011). 40

Id. 41

Susan M. Cormier, Glenn W. Suter II, and Lei Zheng, Derivation of a Benchmark for Freshwater Ionic Strength,

32 ENVIRONMENTAL TOXICOLOGY AND CHEMISTRY 263 (Nov. 12, 2012). 42

Id.

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Allegheny Plateau ecoregion (region 70), its waters should have a similar salt matrix and

background composition.43

Building on this research, West Virginia Department of Environmental Protection

(“WVDEP”) has also recognized that conductivity and sulfate cause biological impairment of

streams.44

In WVDEP’s guidance, it provided ranges within which it believes that indicators of

ionic pollution are likely to cause or contribute to such biological impairment. WVDEP

considers conductivity to be a “definite stressor” when it exceeds 1533 µS/cm and a “likely

stressor” when it exceeds 1075 µS/cm. WVDEP considers sulfate to be a “definite stressor”

when it exceeds 417 mg/l and a “likely stressor” when it exceeds 290 mg/l.

Additionally iron can be toxic to fish and other aquatic organisms. For this reason the

EPA has set a Criterion Continuous Concentration (CCC) (an estimate of the highest

concentration of a material in surface water to which an aquatic community can be exposed

indefinitely without resulting in an unacceptable effect) at 1.0 mg/L in freshwater.45

a. Pollution in Meadow Run

To the south of the Mine Dump, Meadow Run approaches from the south and then turns

east running past the Waste and into the River. Figure 6B. At SW-1, which is least affected by

the Mine Dump, the conductivity level has hovered at about 1100 µS/cm for the past five years.

See Figure 4B. At SW-3, where the stream passes closest to the Mine Dump the conductivity

consistently reaches over 5,000 µS/cm. Id. Downstream, closest to the River at SW-18, the

conductivity is approximately 1,400 µS/cm. Id. In addition, discolored orange water was

flowing into the stream just below SW-18 when Citizens visited areas adjacent to the Mine

Dump to take samples on September 20, 2012. The water appeared to originate from a

groundwater seep upon MCC's property. A sample of this water taken by CCC shows showed

that it had a conductivity level of 2,300 µS/cm. With regard to sulfate, the concentrations exhibit

a similar, but even more pronounced pattern of becoming much more polluted as Meadow Run

approaches the Mine Dump and becoming slightly less polluted as it progresses towards the

River. Figure 5B. At SW-1, upstream of the Mine Dump, the sulfate level was 230 mg/L, at

SW-3, closest to the Mine Dump, it was over 2,000 mg/L; and at SW-18 it was approximately

430 mg/L. Id. The discolored water running into the stream from the Mine Dump had a sulfate

level of 1190 mg/L.

Therefore, with regard to conductivity, the Mine Dump has caused or contributed to

conductivity levels in Meadow Run that are over sixteen times the EPA impact level at SW-3 and

remain over 4 times that standard downstream beyond SW-18. In addition, the conductivity level

at SW-3 far exceeds the WVDEP definite stressor level and is above the likely stressor level at

SW-18. The discharge from the apparent seep to the stream was also increasing the conductivity

43

Id. 44

WVDEP, Justification and Background for Permitting Guidance for Surface Coal Mining Operations to Protect

West Virginia’s Narrative Water Quality Standards, 47 C.S.R. 2 §§ 3.2.e and 3.2.i (Aug. 12, 2010) available at

http://www.dep.wv.gov/pio/Documents/Narrative/Narrative%20Standards%20Guidance%20Justification.pdf 45

EPA, National Recommended Water Quality Criteria,

http://water.epa.gov/scitech/swguidance/standards/criteria/current/index.cfm#cmc.

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downstream of SW-18. With regard to sulfate, the Mine Dump has caused or contributed to

sulfate levels that are over four times the WVDEP definite stressor level at SW-3 and remain

over that standard downstream beyond SW-18. The discharge from the Mine Dump to the

stream was increasing the sulfate levels downstream of SW-18. Both the topography and the

chemistry indicate that the pollution discharging from the apparent seep originates at the Mine

Dump. In addition, where data has been taken at the same points over a period of time, it shows

that the levels of pollution have remained high for many years.

Iron levels in Meadow Run are also staggering and harmful to wildlife. At SW-3 iron

concentrations reached levels as high as 33 times the EPA threshold for exposure of 1 mg/L in

2009 and most recently reaching levels as high as 17.6 mg/L in September 2012. Even further

downstream at SW-18, iron levels recently reached as high as 8.88 mg/L in September 2012.

Because these are well over guideline levels recommended by EPA scientists, they are likely

causing or contributing to environmental harm in Meadow Run.

In recent sampling events at SW-3 in 2012, exceedences were observed for the PA CCC

for antimony (0.220 mg/L); the PA CCC for boron (1.6 mg/L); the EPA CCC and CMC for

chromium (0.016 and 0.011, respectively); and the EPA CMC and CCC for lead (0.065 and

0.0025 mg/L, respectively). These metals are not monitored at SW-1 and SW-18.

Boron is generally a good indicator of pollution caused by coal ash because it is mobile

and background concentrations are generally low. Although MCC has done very little

monitoring for boron, the sampling that has been done confirms that the coal ash at the Mine

Dump is contributing to the pollution in Meadow Run. Figure 6B.

Thus, the Waste is causing or contributing to ionic, metallic, and sulfate pollution in

Meadow Run. Because this pollution exceeds levels at which scientific studies show that it will

cause harm to organisms attempting to live in Meadow Run, this pollution may present an

imminent and substantial endangerment to health and the environment in violation of RCRA.

The high levels of pollutants in that stream also show that MCC is violating the CSL.

b. Pollution in Stream 1

Stream 1 has its headwaters to the east of the Mine Dump and flows slightly northeast to

the River. See Figure 6B. There is only one monitoring point in this stream at SW-17. Id. At

that point, the conductivity level has ranged between 2340 and 4310 µS/cm over the past five

years. See Figure 4B. In addition, discolored orange water flows into the stream from a

groundwater seep just before it passes below the road. A sample of this water taken by CCC on

September 21, 2012 showed that it had a conductivity level of just under 3,000 µS/cm. Id. At

SW-17, the sulfate level has ranged from 690 to 1823 mg/L over the past five years, with values

of approximately 1500 mg/L observed in samples taken in August and September 2012. The

discolored water running into the stream from the seep had a sulfate level of 1080 mg/L. Both

the topography and the chemistry indicate that the pollution discharging from the observed seep

originates at the Mine Dump. In addition, where data has been taken at the same points over a

period of time, it shows that the levels of pollution have remained high for many years.

9

Therefore, with regard to conductivity the Mine Dump has caused or contributed to

conductivity levels that are over ten times the EPA impact level at SW-17. In addition, the

conductivity level at SW-17 is approximately double the WVDEP definite stressor level. The

discharge from the seep to the stream is also ten times the EPA impact level and just under

double the WVDEP definite stressor level. With regard to sulfate, the Mine Dump is causing or

contributing to sulfate levels that are over three times the WVDEP definite stressor level at SW-

17. The discharge from the seep to the stream is approximately double the WVDEP definite

stressor level.

Thus, the Waste is causing or contributing to ionic and sulfate pollution in Stream 1.

Because this pollution exceeds levels at which scientific studies show that it will cause harm to

organisms attempting to live in Stream 1, this pollution may present an imminent and substantial

endangerment to health and the environment in violation of RCRA. The high levels of pollutants

in Stream 1 also show that MCC is violating the CSL.

c. Pollution in Stream 2

Stream 2 has its headwaters to the north of the Mine Dump and flows slightly southeast

to the River. See Figure 6B. There is only one monitoring point in this stream at SW-8. At that

point the most recent conductivity level observed was just over 2700 µS/cm; taken from a

sampling event in August 2012. Figure 4B. At this same sampling event, the sulfate level was

over 1900 mg/L. Figure 5B.

Therefore, with regard to conductivity, the Mine Dump is causing or contributing to

conductivity levels that are over nine times the EPA impact level at SW-8. In addition, the

conductivity level at SW-8 is approximately 1.6 times the WVDEP definite stressor level. With

regard to sulfate, the Mine Dump is causing or contributing to sulfate levels that are over four

times the WVDEP definite stressor level at SW-8.

Thus, the Waste is causing or contributing to ionic and sulfate pollution in Stream 2.

Because this pollution exceeds levels at which scientific studies show that it will cause harm to

organisms attempting to live in Stream 2, this pollution may present an imminent and substantial

endangerment to health and the environment in violation of RCRA. The high levels of pollutants

in Stream 2 also show that MCC is violating the CSL.

d. Pollution in Stream 3

Stream 3 has its headwaters to the west of the Mine Dump and flows northwest to the

River. See Figure 6B. There are only two monitoring points in this stream. SW-15 is a

downstream point that is monitored by MCC. DS27-5 is an upstream point that Citizens sampled

on September 21, 2012. The upstream point is closer to the western face of Slurry Pond 3.

Upstream at DS27-5 the conductivity level was just over 3850 µS/cm at the most recent

sampling event in September 2012. See Figure 4B. Downstream at SW-15, the conductivity

level declined slightly to just under 2037 µS/cm. With regard to sulfate, upstream the sulfate

level was over 1870 mg/L, while downstream it was just over 950 mg/L. See Figure 5B.

10

Therefore, with regard to conductivity, the Mine Dump is causing or contributing to

conductivity levels that range from approximately six to twelve times the EPA impact level and

one to two times the WVDEP definite stressor level. With regard to sulfate, the Mine Dump is

causing or contributing to sulfate levels that range from approximately two to four times the

WVDEP definite stressor level at SW-8.

Thus, the Waste is causing or contributing to conductivity and sulfate pollution in Stream

3. Because this pollution exceeds levels at which scientific studies show that it will cause harm

to organisms attempting to live in Stream 3, this pollution may present an imminent and

substantial endangerment to health and the environment in violation of RCRA. The high levels

of pollutants in Stream 3 also show that MCC is violating the CSL.

ii. MCC’s Ongoing Pollution of Groundwater of the Commonwealth

Violates the Clean Streams Law and May Present an Imminent and

Substantial Endangerment to Human Health and the Environment.

MCC’s original permit required a groundwater monitoring program that only included

monitoring at surface water points and at two points, GW-5 (on the eastern side of Slurry Pond 3)

and GW-6 (northwest of Slurry Pond 2), that collected samples of the “under-drain” and refuse

pile discharge.46

Discharges collected through these points (which are directed through a

treatment pond system) are indicative of the composition of leachate from these ponds. Samples

from GW-5 and GW-6 have consistently contained high levels of specific conductivity, sulfate,

manganese and aluminum.47

In the past year, samples from these points have also had elevated

levels of boron and selenium, which are indicative of pollution from coal ash.48

Hydrological studies conducted for MCC and previous operators confirm that the shallow

groundwater flow is generally radial towards the River following local topography.49

Although

there is very little groundwater monitoring data, the available data is consistent with this pattern.

At monitoring wells DH-1 (near SW-15) and MW-4B (near SW-3), the most recent conductivity

analysis revealed levels of 1464 µS/cm at DH-1 and 691 µS/cm at MW-4B. Figure 4B. At the

same points and on the same date, sulfate levels were nearly 600 mg/L and 147 mg/L

respectively. Figure 5B. Further away from the Mine Dump at point DS27-1, a seep close to the

road on the east side of the Mine Dump, conductivity was over 2100 µS/cm and sulfate was

approximately 730 mg/L. Figure 4B. The seeps at DS27-2 (near SW-18) and DS27-3

(downstream of SW-17) are similar, with levels of specific conductivity 2300 and 2950 µS/cm

respectively; levels of sulfates 1190 and 1080 mg/L respectively; and levels of TDS 1810 and

2080, respectively. Figures 4B, 5B. Thus, both the topography and the chemistry indicate that

the seeps that CCC monitored are fed by polluted groundwater emanating from the Mine

46

CRDA Permit 26970702, Part B, Special Condition 4, at 11 (June 10, 1998). 47

Between 2007 and 2012: specific conductivity ranged between 2191 and 4800 µS/cm at GW-5 and between 2570

and 4850 µS/cm at GW-6; sulfate ranged between 1314 and 3000 mg/L at GW-5 and 1396 and 3200 at GW-6;

manganese ranged between 0.82 and 8.22 mg/L at GW-5 and between 4.93 and 16.63 mg/L at GW-6; aluminum

ranged between 0.02 and 2.81 mg/L at GW-5 and between 0.73 and 13.74 mg/L at GW-6. 48

Analysis of selenium at both of these points is has been compromised by levels of detection (LODs) that were

above drinking water standards until the end of 2011. Since the LODs were adjusted selenium has been detected

at levels above state standards one occasion at GW-5. Boron levels range between the LOD and 3.53 mg/L at

GW-5 and between 0.5 and 2.9 mg/L at GW-6. 49

See 1997 Application, Geologic Cross Sections B-B’, F-F’.

11

Dump.50

The extent of the groundwater pollution is not well defined. A sample in a basement to

the east of the Mine Dump at DS27-4 had a conductivity of 500 µS/cm and a sulfate level of 67

mg/L. In addition, there were visual indications of groundwater seepage on the east side at

DS27-1 to DS27-3. This tends to indicate the groundwater pollution is shallow and emerges into

surface water at around the level of the road on the east side.

The Commonwealth of Pennsylvania has set standards for levels of sulfate and TDS in

drinking water. The sulfate standard is 250 mg/L and the TDS standard is 500 mg/L. Pollution

of groundwater to above those levels affects the use of the groundwater for drinking. The CSL

prohibits discharge of pollutants to groundwater without a permit and prohibits pollution of

groundwater.

The measured levels of sulfate in the groundwater and seeps exceed the allowable levels

by factors of approximately by a factor of two at DH-1, by a factor of four at 27-2 and 27-3. TDS

levels were not available for samples taken at DH-1 and MW-4B; but TDS levels at 27-2 and 27-

3 exceed allowable factors by factors of three and four, respectively. The measured levels of

sulfate in the groundwater and seeps exceed the allowable levels by factors of approximately two

at DH-1 and four at 27-2 and 27-3. TDS levels were not available for samples taken at DH-1 and

MW-4B; but TDS levels at 27-2 and 27-3 exceed allowable factors by factors of three and four,

respectively.

Additionally, samples taken in December 2011, March 2012, and June 2012 at MW-1

exceed the allowable level of aluminum (0.2 mg/L) by factors of two, two and five, respectively.

Samples taken in December 2011 and September 2012 for manganese exceeded allowable levels

(0.05 mg/L) by factors of two and four, respectively.

Overall, the results show that the past and ongoing discharges from the Mine Dump to

the groundwater have caused and are causing groundwater pollution that exceeds drinking water

standards in violation of the CSL. Because this pollution of the groundwater is causing or

contributing to the potential endangerment in the streams, it is also a violation of RCRA.

III. MCC’s Ongoing Pollution of Waters of the Commonwealth Violates Pennsylvania

Regulations Governing the Beneficial Use of Coal Ash Enacted Under the Surface

Mining Control and Reclamation Act

PA SMCRA specifically prohibits causing air or water pollution in connection with

mining.51

This provision subjects violators to injunctive relief, civil penalties and criminal

penalties.52

Citizens may sue to enforce any provision of the act.53

More specifically, the regulations on the beneficial use of coal ash state that coal ash may

not be used in a way that causes water pollution.54

The regulations also require that “surface

50

While EPA has identified about 30 elements that are markers of coal ash waste, MCC has not been required to

monitor most of these in these monitoring wells. 51

52 P.S. § 1396.18f. 52

Id. 53

52 P.S. § 1396.18c (a) and (c). 54

25 Pa. Code § 290.101(f).

12

mining activities shall be planned and conducted to minimize disturbances to the prevailing

hydrologic balance in the permit and adjacent areas and to prevent material damage to the

hydrologic balance outside the permit area.”55

According to the Federal Office of Surface

mining:

Material damage to the hydrologic balance outside the permit area means any

quantifiable permanent adverse impact from surface coal mining and reclamation

operations on the quality or quantity of surface water or groundwater that exceeds

the identified material damage limits and that would preclude any existing or

reasonably foreseeable use of surface water or groundwater outside the permit

area.56

As discussed above, MCC’s mine reclamation activities are causing water pollution in

both groundwater and surface water that affects the use of those waters for drinking and renders

them harmful to wildlife. This water pollution therefore violates PA SMCRA.

IV. MCC Is Violating the Clean Air Act and Pennsylvania’s Air Pollution Control Act

Because Fugitive Air Pollution From Its Operations Passes Beyond Its Property

Line.

MCC is violating the CAA and the APCA because fugitive air pollution from its

operations crosses its property line and blankets the property of nearby residents and local

roadways. Inhalation of fugitive air pollution associated with coal ash waste can “cause adverse

human health effects . . . due to inhalation of small-diameter (less than ten microns) ‘respirable’

particulate matter that cause[] . . . a host of cardio and pulmonary mortality and morbidity

effects.”57

In addition, coal ash contains many toxic constituents; workers and nearby residents

exposed to fugitive dust emissions may be exposed to toxics like arsenic, chromium, nickel,

cadmium, lead, beryllium, mercury, and others.58

Some of these toxics are known carcinogens

(arsenic, chromium, nickel), and others are probable carcinogens (lead, cadmium, beryllium).59

Each of the toxics in coal ash dust poses an independent health threat, and there is also the

possibility of cumulative health impacts from exposure to particulate matter and multiple toxics.

Pennsylvania’s state implementation plan (“SIP”) prohibits the emission of fugitive air

contaminants60

from material in or on trucks and other vehicular equipment.61

The SIP also 55

25 Pa. Code § 87.101(a). 56

Office of Surface Mining, Cumulative Hydrologic Impact Assessment: BHP Navajo Mine Co., 3 (March 2012)

available at http://www.wrcc.osmre.gov/Current_Initiatives/CHIA/Navajo/Final-Navajo-Mine-2012-Material-

Damage-Statement.pdf. 57

Hazardous and Solid Waste Management System; Identification and Listing of Special Wastes; Disposal of Coal

Combustion Residuals From Electric Utilities; Proposed Rule, 75 Fed. Reg. 35,128, 35,171 (June 21, 2010). 58

75 Fed. Reg. at 35,169, 35,171; Velimir B. Vouk & Warren T. Piver, Metallic Elements in Fossil Fuel Combustion

Products, 47 Envtl. Health Perspectives 201 (1983). 59

See U.S. Envtl. Protection Agency, Integrated Risk Information System (IRIS), http://www.epa.gov/IRIS/ (last

visited Aug. 29, 2012). 60

A fugitive air contaminant is defined as an air contaminant of the outdoor atmosphere not emitted through a flue,

including, but not limited to, industrial process losses, stock pile losses, re-entrained dust and

construction/demolition activities. 25 Pa. Code § 121.1; 40 C.F.R. § 52.2020(b)(1), (c)(1); 77 Fed. Reg. 59,090

(Sept. 26, 2012). 61

25 Pa. Code §§ 123.1; 40 C.F.R. § 52.2020(b)(1), (c)(1); 44 Fed. Reg. 73031 (Dec. 17, 1979).

13

prohibits the emission of fugitive particulate matter62

from the use of roads if such emissions are

visible at the point the emissions pass outside a permit-holder’s property.63

Identical prohibitions

are contained in MCC’s Operating Permit (“Air Permit”), which is in effect under the SIP.64

The SIP and Air Permit further state that fugitive air pollution from the use of roads must

be controlled by all reasonable actions to prevent particulate matter from becoming airborne,

including, but not limited to, applications of asphalt, oil, water or suitable chemicals on dirt roads

and paving and maintenance of roadways.65

Additionally, Special Condition 25 of the Mine

Dump’s coal refuse disposal permit requires that “[t]he permittee must control dust during

beneficial use activities.”66

The APCA prohibits the emission of fugitive particulate matter “if

the emissions are visible at the point the emissions pass outside the person’s property.”67

In violation of the CAA and the APCA, fugitive particulate matter pollution from MCC’s

operations has repeatedly and visibly crossed the property boundary, covering the property of

nearby residents. MCC was issued Notices of Violations for fugitive air pollution violations on

January 5, 2011 and April 1, 2011.68

In addition, CCC has photographs and videos documenting

fugitive air pollution beyond MCC’s property line on at least January 23, 2013, February 12,

2012, and January 5, 2011. In addition, analyses of dust from residents’ properties close to the

Mine Dump showed that coal ash was present and that the dust had Mine Dump levels of

antimony, arsenic, chromium and lead consistent with levels found in ash.

MCC has failed to prevent, and continues to fail to prevent, dangerous fugitive air

pollution from crossing beyond his property in violation of the CAA and the APCA. Each of the

days identified above, each day fugitive air pollution crossed MCC’s property line in the last five

years, and all future days that fugitive air pollution crosses MCC’s property line is a separate

violation of the CAA and the APCA.

V. MCC Is Violating the Clean Air Act and Pennsylvania’s Air Pollution Control Act

By Hauling Coal Ash Waste in Open Trucks.

MCC hauls coal ash waste in open trucks without tarps in violation of the CAA and the

APCA. As discussed above, fugitive air pollution from coal ash waste poses a significant health

risk to CCC members and other citizens living near the Mine Dump. The Air Permit states that

“[a]ll trucks carrying bulk material shall be tarped when leaving the terminal”; “[a]ll roads shall

be kept clean or watered as needed to minimize dust”; and “[a]t no time shall the terminal

undertake any activity, even when in compliance with the … work practices,69

such that it

62

Particulate matter is defined as a material except uncombined water which is or has been airborne and exists as a

solid or liquid at 70° F and 14.7 pounds per square inch absolute pressure. 25 Pa. Code § 121.1; 40 C.F.R.

§ 52.2020(b)(1), (c)(1); 77 Fed. Reg. 59,090 (Sept. 26, 2012). 63

25 Pa. Code § 123.2;; 40 C.F.R. § 52.2020(b)(1), (c)(1); 49 Fed. Reg. 30,183 (July 27, 1984). 64

Air Permit, ¶¶ C.I. #001(a), #002. 65

25 Pa. Code § 123.1(c); 40 C.F.R. § 52.2020(b)(1), (c)(1); 44 Fed. Reg. 73031 (Dec. 17, 1979); Air Permit, ¶¶ C.I.

#001(c), C.VI. #009. 66

CRDA Permit No. 26970702, Part B. 67

25. Pa. Code §123.2; 40 C.F.R. § 52.2020 (c)(1); 44 Fed. Reg. 73031 (Dec. 17, 1979). 68

Letter and Notice of Violation from PA DEP to MCC (Jan. 14, 2011); PA DEP, Coal Refuse Disposal Inspection

Report, at 2 (Apr. 1, 2011). 69

This is a reference to the work practices contained in ¶¶ C.VI. #009, #010 of the Air Permit.

14

permits fugitive dust to cross the property line.”70

It is a violation of the APCA to “fail to

comply with any order, plan approval, permit or other requirement of the department.”71

Because

the Air Permit is in effect under Pennsylvania’s SIP, it is also enforceable under the CAA.72

CCC members have repeatedly observed trucks hauling toxic coal ash from the terminal

without required tarps. CCC has photographs and video documenting trucks traveling from the

terminal without tarps on at least January 23, 2013, February 12, 2012, and January 5, 2011.

MCC has failed, and continues to fail, to cover coal ash trucks hauling waste from the terminal in

violation of the CAA and the APCA. Each of the days identified above, each truck that hauled

coal ash waste from the terminal without a tarp in the last five years, and all future trucks that

haul coal ash waste from the terminal without a tarp is a separate violation of the CAA and the

APCA.

VI. CONCLUSION

MCC has violated and is currently violating RCRA, CSL, PA SMCRA, CAA, and APCA

at the Mine Dump. Accordingly, CCC intends to file suit to enjoin and abate the violations

described above, ensure future compliance with federal and state law, obtain civil penalties,

recover attorneys’ fees and costs of litigation, and obtain other appropriate relief.

If you have any questions regarding the allegations in this notice or believe any of the

foregoing information may be in error, please contact either Alayne Gobeille or Richard Webster

at the numbers listed below. In the absence of any questions, we would also welcome an

opportunity to discuss a resolution of this matter prior to the initiation of litigation if you are

prepared to remedy the violations discussed above.

Sincerely,

/s

Lisa Widawsky Hallowell, Esq. Richard Webster, Esq.

PA Bar ID 207983 Public Justice

Environmental Integrity Project 1825 K Street, NW Suite 200

123 West Wayne Avenue Washington, D.C. 20006

Wayne, PA 19087 rwebster@publicjustice.net

lhallowell@environmentalintegrity.org (202) 797-8600

(202) 294-3282

/s

Alayne Gobeille, Esq.

Environmental Integrity Project

70

Air Permit, ¶ C.VI. #010. 71

35 P.S. § 4008. 72

42 U.S.C. §§7604(a)(1); (f)(4); 25 Pa. Code § 127.441(a); 40 C.F.R. § 52.2020(b)(1), (c)(1); 61 Fed. Reg. 39,597

(July 30, 1996).

15

1 Thomas Circle, Suite 900

Washington, DC 20005

agobeille@environmentalintegrity.org

(202) 263-4454

Counsel for Citizens Coal Council

cc:

Bob Perciasepe Via Certified Mail, Return Receipt Requested

Acting Administrator

U.S. Environmental Protection Agency

Ariel Rios Building

1200 Pennsylvania Avenue, N.W.

Mail Code: 1101A

Washington, DC 20460

Shawn M. Garvin Via Certified Mail, Return Receipt Requested

Regional Administrator

U.S. Environmental Protection Agency Region 3

1650 Arch Street (3PM52)

Philadelphia, PA 19103-2029

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U.S. Department of Justice

950 Pennsylvania Avenue N.W.

Washington, DC 20530-0001

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Pennsylvania Office of Attorney General

16th

Floor, Strawberry Square

Harrisburg, PA 17120

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Secretary

Pennsylvania Department of Environmental Protection

Rachel Carson State Office Building

400 Market Street

Harrisburg, PA 17101

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Pennsylvania Department of Environmental Protection

Rachel Carson State Office Building

400 Market Street

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16

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Pennsylvania Department of Environmental Protection

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Pennsylvania Game Commission

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President, Pennsylvania Fish and Boat Commission

1601 Elmerton Ave

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Joel Koricich Via Email

Acting District Mining Manager

Pennsylvania Department of Environmental Protection, California District

25 Technology Drive

California Technology Park

Coal Center, PA 15423

jkoricich@pa.gov

Figure 1 The Volcano of Waste in LaBelle, PA

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!<

!<

!<

!<!<DS27-5

DS27-3

DS27-4

DS27-2

DS27-1

DS27-1a

DS27-6 (field blank)007

005

009

004

003

001

G-7

002

006

008

B-6

SW-1

SW-3

SW-2

GW-5

GW-4

SW-8

GW-9

GW-6

GW-10

GW-12SW-13

SW-18

SW-17

SW-16

SW-14

SW-15

Pond 2

Pond 3

Pond 1

SW-11

2

Figure 2 – Site Layout

Figure. 3 Specific conductance, water, unfiltered, microsiemens per centimeter at 25 degrees

Celsius Most recent instantaneous value: 266 01-04-2013 13:15 EST

• Conductivity range for Monongahela River: 220 to 270 umohs/cm

3

Figure 4A – Specific Conductance

Figure 4B Specific Conductance

Figure 5A Sulfate

Figure 5B Sulfate

Figure 6A Boron

Figure 6B Boron

Figure 7A TDS

Figure 7B TDS