IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA
RAYMOND PROFFITT FOUNDATION,
P.O. Box 723, Langhorne PA 19047
PLAINTIFF,
V.
PENNSYLVANIA DEPARTMENT OF
ENVIRONMENTAL PROTECTION, and
JAMES M. SEIF, SECRETARY, Rachel
Carson State Office Bldg, P.O. Box 2063,
Harrisburg, PA 17105-2063,
DEFENDANTS.
:
: CIVIL ACTION
:
: NO.
:
COMPLAINT IN EQUITY
Plaintiff, the Raymond Proffitt Foundation, through its legal counsel, alleges as follows:
I. PRELIMINARY STATEMENT
1. Plaintiff, the Raymond Proffitt Foundation, brings this citizen lawsuit for equitable,declaratory and injunctive relief against the Pennsylvania Department of Environmental Protection for 1) failure to perform an act or duty that is not disc retionary under the Surface Mining Coal and Reclamation Act ("SMCRA"), in that Pennsylvania has amended its Coal Refuse Disposal Control Act, without first notifying the Federal Office of Surface Mining ("OSM") that such changes were proposed, as req uired by SMCRA; and 2) that Pennsylvania has issued a permit under these amendments without first having the amendments approved by OSM as required by SMCRA.
2. Plaintiff also requests that this court hold that issuance of the permit to Vesta Mining Company, under these unapproved amendments, be held illegal; and further that Pennsylvania be enjoined from issuing new permits until its amendments are approved by OSM.
3. Plaintiff also alleges that the Vesta permit violates the Clean Water Act, and therefore violates SMCRA.
II. JURISDICTION
4. Federal jurisdiction is proper pursuant to the Surface Mining Coal and Reclamation Act, 30 U.S.C. 1270 (a)(2).
5. Federal jurisdiction is proper pursuant to 28 U.S.C. 1331.
6. This Court has the power to issue a declaratory ruling concerning the rights of the parties pursuant to 28 U.S.C. 2201 and F.R.C.P. 57.
7. This Court has the power to grant injunctive relief pursuant to F.R.C.P. 65.
8. Venue is proper in the Western District of Pennsylvania, pursuant to the Surface Mining Coal and Reclamation Act, 30 U.S.C. 1270 (c) (1) because the mining operation complained of is located in Washington County, PA.
9. On July 10, 1995 Plaintiff gave notice of the matter to the Hon. James M. Seif, Secretary of the Pennsylvania Department of Environmental Protection; to the Hon. Bruce Babbitt, Secretary of the Interior; to Robert J. Uram, Director, OSM; to Allen D. Klein, Regional Director, OSM; and to Dr. Alvin Morris, Director of Water Management, Region III EPA. Exhibit 1.
10. More than sixty days have passed since notice was served and received, and the matter complained of has not been resolved.
III. PARTIES
11. Plaintiff is the Raymond Proffitt Foundation ("RPF") with an address of P.O. Box 723, Langhorne, PA 19047-723.
12. Members of the Raymond Proffitt Foundation live adjacent to and overtop the proposed mining operation and will be affected by both the mining and the refuse disposed in the valley fill. Members also use Daniels Run for fishing and recreating and this stream will be adversely affected by discharges from the proposed valley fill.
13. One member owns property abutting the mining permit boundary for the valley fill. He will suffer noise and pollution.
14. Two members live across from Daniels Run and the road at the bottom of the valley fill and its discharge, and will suffer from degradation of the stream as well as potential disaster if the valley fill should fail through either subsidence or slippage. The proposed valley fill is located over a previously mined area supported by coal pillars that may fail because of the weight of 21.6 million tons of coal refuse to be placed on top. In addition, rail cars used to transport the coal will run along the stream and across from these members, and will cause noise and cause air and water pollution.
15. Several members live and own homes over the area that will be mined, and their homes will suffer harm, since this longwall method of mining will cause subsidence under their properties.
16. Defendant is the Pennsylvania Department of Environmental Protection (hereinafter "Pennsylvania") with an address of Rachel Carson State Office Bldg, P.O. Box 2063, Harrisburg, PA 17105-2063.
17. Defendant, James M. Seif, is Secretary of the Pennsylvania Department of Environmental Protection, with the same address as above.
IV. BACKGROUND
18. Pursuant to the Surface Mining Coal and Reclamation Act, 30 U.S.C. 1253 ("SMCRA"), Pennsylvania received primacy from the Department of the Interior to operate its coal mining program in either 1980, 1981 or 1982.
19. The Coal Refuse Disposal and Control Act, 52 P.S. 30.51, et seq. (CRDCA), is a state statute regulating, inter alia, the disposal of coal refuse, and the federal government approved amendments to it as part of Pennsylvania's state mining p rogram in 1980.
20. The 1980 amended CRDCA prohibits coal refuse disposal operations "within one hundred feet of the bank of any stream." CRDCA, 52 P.S. 30.56a (h) (5) (1980 amended version). Exhibit 2.
21. This law prohibits a method of coal refuse disposal known as "valley fills" that dumps refuse overtop streams and wetlands located in valleys.
22. On December 7, 1994, Pennsylvania amended the CRDCA to allow for variances to its prohibition against mining within one hundred feet of a stream. CRDCA, 52 P.S. 30.56a (h) (5) (1994 amended version). Exhibit 1.
23. The amendments to the CRDCA, 52 P.S. 30.54a also create "preferred sites" and "alternate sites" for the deposition of coal refuse and allow preferred site disposal in sites known to contain federal threatened or endangered plants or animal s, and allow deposition of waste in areas other than Exceptional Value Streams. Exhibit 1
24. One of the requirements of primacy is that the federal Office of Surface Mining (OSM) must review and approve all amendments to state mining laws and programs, before they become effective. 30 CFR 732.17 (g).
25. Pennsylvania did not submit its 1994 amendments to the CRDCA prior to enactment.
26. On July 10, 1995 RPF filed a sixty day notice of intent to sue, pursuant to SMCRA, for Pennsylvania's failure to submit its 1994 amended statute to OSM.
27. On September 14, 1995, fifty-five days after receipt of the above notice, Pennsylvania submitted its 1994 amended statute to OSM for approval.
28. OSM has received comments concerning its review of Pennsylvania's 1994 amendments to its approved program; including comments expressing opposition from RPF.
29. RPF's comments to OSM include, inter alia, opposition on the basis that approval of Pennsylvania's 1994 amendments would violate provisions of the federal Clean Water Act, and its regulations, provisions of the Endangered Species Act.
30. OSM has not issued a decision on whether to approve Pennsylvania's 1994 amended statute.
31. Judicial Review of that decision would occur in the United State District Court for the Middle District of Pennsylvania. SMCRA, 30 U.S.C. 1276 (a) (1).
32. On December, 1997, Pennsylvania issued a permit to Vesta Mining Company
(Vesta) allowing a valley fill for 21.6 million tons of coal refuse that will eliminate two
miles of perennial stream and seeps, three and one-third acres of wetlands, and
destroy 225 acres
of wooded uplands.
33. According to various federal and state agencies the existing uses of the stream and wetlands at Vesta are wildlife and aquatic uses.
34. The Vesta valley fill permit is for refuse that will come from an underground mine that will be mined by the longwall mining method, collapsing the mine as mining progresses, and causing immediate and long-term surface subsidence that will affect homes and property of members of RPF.
35. The proposed valley fill is located over a previously mined area supported only by pillars of coal, and will be subject to additional weight of 21.6 million tons of refuse, which has the potential to collapse---causing personal injury and d estruction of property to members of RPF.
36. The Vesta valley fill permit was required as a condition of issuance of the underground mining permit.
37. This Complaint seeks to stop DEP from issuing permits under unauthorized amendments to the CDRCA that allow the practice of valley fills.
38. The practice of valley fills allows relocation or diversion of the water of a stream so coal refuse may be deposited in its place.
39. The stream may be piped or allowed to flow under an impoundment of coal refuse or slurry or it may be diverted around it.
40. The consequences, however, are that the existing stream, its habitat, and its wetlands are all destroyed, and the life within the stream as well as the life dependent upon the stream and its surrounding area are adversely if not fatally affected.
41. Because the stream is encased in pipes or made to flow underground it is derived of sunlight and nutrients, and it cannot be used by insects, fish, wildlife, or humans.
42. In addition, since the recharge area of the stream is eliminated, this lack of flow may cause the stream itself to dry up.
43. The elimination of everything that makes up the stream constitutes the elimination of existing uses.
44. Prior to the 1994 amendment of the CRDCA, Pennsylvania had issued several valley fill permits pursuant to its regulations, but contrary to the language in its 1980 CRDCA.
45. In July, 1989 the Pennsylvania DEP issued the Doverspike permit over the objections of federal and state agencies.
46. More than 3,000 feet of cold water fishery stream and three and one-half acres of
wetlands were eliminated. According to a recent study by the Pennsylvania Fish &
Boat Commission, this project and another similar one have failed, and the p iped
streams
themselves have now been eliminated.
47. On July 5, 1995 Pennsylvania signed a Cooperative Agreement with the state of West Virginia to separately issue permits to a valley fill operation (Hughes Hollow Refuse) that would span the two states, destroying streams and wetlands in both states.
48. On September 6, 1995, pursuant to the 1994 amendments and to the above Cooperative Agreement, DEP issued permit number CRD 30950701 to Consolidation Coal Company, Inc. for the Hughes Hollow Refuse Impoundment (hereinafter "Hughes") locate d in Wayne, Greene County Pennsylvania.
49. The Hughes project involves the filing of a valley with coal refuse and will adversely affect over 2700 feet of perennial streams and an undetermined amount of wetlands in Pennsylvania.
V. CLAIMS MADE
COUNT 1
PENNSYLVANIA'S AMENDMENTS TO ITS COAL REFUSE STATUTE ARE
ILLEGAL BECAUSE IT FAILED TO NOTIFY OSM OF PROPOSED CHANGES
TO ITS MINING PROGRAM BEFORE IMPLEMENTING THAT PROGRAM
50. Paragraphs 1 through 49 are incorporated by reference as though set forth fully at length.
51. Pennsylvania amended its CRDCA on December 7, 1994 to include Sections 6.1(h)(5) and 4.1 of CRDCA, 52 P.S. 30.56a(h)(5) and 30.54a
52. Federal regulations require a state to submit any changes to laws or regulations that make up the approved state program whenever such changes are proposed. 30 CFR 732.17(g).
53. Submission of proposed changes to laws or regulations is a nondiscretionary duty.
54. In this instance, Pennsylvania made these changes to its existing mining program without first notifying or submitting them to OSM, and therefore has violated its nondiscretionary duty.
WHEREFORE, RPF respectfully requests that this Court hold invalid Sections
6.1(h)(5) and 4.1 of the CRDCA, 52 P.S. 30.56a(h)(5) and 30.54a, or in the alternative,
suspend implementation of these amended sections of the CRDCA until OSM has ev
aluated and
approved this amendment as part of the state program; RPF further requests that this
Court award costs of litigation to RPF (including reasonable attorney and expert
witness fees); and RPF further requests that this Court grant any other relief it may
deem proper.
COUNT 2
PENNSYLVANIA CANNOT ISSUE PERMITS UNDER ITS AMENDED COAL REFUSE STATUTE BECAUSE IT DOES NOT HAVE APPROVAL FROM OSM
55. Paragraphs 1 through 54 are incorporated by reference as though set forth fully at length.
56. Pennsylvania is required to operate its mining program only if that program is administered, enforced and maintained in accordance with the provisions of the approved state program. 30 CFR 733.11.
57. The unapproved 1994 amended CRDCA allows for the practice of valley fills, whereas the approved 1980 CRDCA prohibits that practice.
58. Pennsylvania, therefore, cannot issue permits under an unapproved program.
WHEREFORE, RPF respectfully requests that this Court hold that Pennsylvania cannot issue permits under its current CRDCA; RPF further requests that this Court award costs of litigation to RPF (including reasonable attorney and expert witness fee s); and RPF further requests that this Court grant any other relief it may deem proper.
COUNT 3
THE VESTA PERMIT IS ILLEGAL
59. Paragraphs 1 through 58 are incorporated by reference as though set forth fully at length.
60. On December, 1997, Pennsylvania issued a permit to Vesta Mining Company (Vesta) allowing a valley fill for 21.6 million tons of coal refuse that will eliminate two miles of perennial stream and seeps, three and a third acres of wetlands, an d destroy 225 acres of wooded uplands.
61. The Vesta permit was issued pursuant to the 1994 amended CRDCA, which has not been approved by OSM.
62. If the 1994 amended CRDCA is held to illegal, then Pennsylvania can only issue permits under its 1980 approved CRDCA.
63. The previously approved 1980 CRDCA prohibits refuse disposal within 100 feet of the bank of a stream. Exhibit 2
64. The Vesta permit could not be issued under the previously approved 1980 CRDCA.
65. The Vesta permit will cause irrepable harm to the stream, seeps and wetlands.
66. Presently, there has been no destruction of the stream, seeps and wetlands, therefore, holding the permit invalid will not require reclamation---at this time.
WHEREFORE, RPF requests that this Court hold invalid the recently issued Vesta permit and require full reclamation of any affected areas; RPF further requests that this Court award costs of litigation to RPF (including reasonable attorney and expert witness fees); and RPF further requests that this Court grant any other relief it may deem proper.
COUNT 4
PENNSYLVANIA SHOULD BE ENJOINED FROM ISSUING NEW PERMITS
UNTIL ITS COAL REFUSE AMENDMENTS ARE APPROVED BY OSM
67. Paragraphs 1 through 66 are incorporated by reference as though set forth fully at length.
68. Pennsylvania has issued valley fill permits in violation of its approved 1980 CRDCA, and it has issued valley fill permits under its unapproved 1994 CRDCA.
69. Pennsylvania had authority under SMCRA to require the Director of OSM to make a decision on its request for approval of its amendments. 30 CFR 732.17 (7) through (13).
70. Instead, Pennsylvania chose to issue permits without approval of its amended 1994 CRDCA.
71. OSM has not ordered Pennsylvania to stop issuing valley fill permits, yet OSM is still reviewing the legality of those amendments.
72. This Court has authority to enjoin Pennsylvania from issuing permits pursuant to
an
unapproved CRDCA.
WHEREFORE, RPF requests that this Court prohibit DEP from issuing permits under these unauthorized amendments; RPF further requests that this Court award costs of litigation to RPF (including reasonable attorney and expert witness fees); and RPF further requests that this Court grant any other relief it may deem proper.
COUNT 5
PENNSYLVANIA'S ISSUANCE OF VALLEY FILL PERMITS VIOLATES THE ANTIDEGRADATION SECTIONS OF THE CLEAN WATER ACT REGULATIONS AND THEREFORE IS PROHIBITED UNDER THE SURFACE MINING CONSERVATION RECLAMATION ACT
73. Paragraphs 1 through 72 are incorporated by reference as though set forth fully at length.
74. The Vesta valley fill will eliminate two miles of stream and three and one-third acres of wetlands, and therefore, constitutes elimination of existing uses.
75. Federal antidegradation laws provide that streams receive, at a minimum, the following protection: "[E]xisting instream water uses and the level of water quality necessary to protect the existing uses shall be maintained and protected". 40 CFR 131.12
76. "Existing uses" are "those uses actually attained in the waterbody on or after November 28, 1975, whether or not they are included in the water quality standards." 40 CFR 131.3(e).
77. The EPA in its Water Quality Standards Handbook, August, 1994, Chapter 4.4 says that "full protection of the existing use requires protection of the entire water body...."
78. On January 8, 1997 the Environmental Protection Agency promulgated antidegradation regulations for Pennsylvania which are identical to those found above: "[E]xisting instream water uses and the level of water quality necessary to protect the existing uses shall be maintained and protected". 61 FR 64816 (Dec. 9, 1996).
79. SMCRA requires compliance with other environmental laws, including those related to the protection of water:
Nothing in this chapter shall be construed as superseding, amending, modifying, or repealing...any rule or regulation promulgated thereunder, including, but not limited to-...(3) The Federal Water Pollution Control Act (79 Stat. 903), as amended (33 U.S.C. 1151-1175) [33 U.S.C. 1251, et seq.], the State laws enacted pursuant thereto, or other Federal laws relating to preservation of water quality. 30 U.S.C. 1292(a).
80. Further, Pennsylvania is required to operate its mining program only if that program is administered, enforced and maintained in accordance with SMCRA. 30 CFR 733.11.
81. Finally, SMCRA allows stream channel diversions only if they are in compliance with local, state and federal statutes and regulations. 30 CFR 715.17 (d).
82. Pennsylvania, therefore, is in violation of SMCRA because it is allowing valley fills that violate the Clean Water Act regulations, and its own regulations.
WHEREFORE, RPF requests that this Court hold that Pennsylvania is in violation of SMCRA through its violation of the Clean Water Act regulations; RPF further requests that this Court hold the Vesta valley fill permit invalid; RPF further request s that this Court award costs of litigation to RPF (including reasonable attorney and expert witness fees); and RPF further requests that this Court grant any other relief it may deem proper.
Respectfully submitted,
JOHN WILMER
Attorney for the
Raymond Proffitt Foundation
21 Paxon Hollow Road
Media, PA 19063
610) 565-2736
I.D. 33119
Date: February 10, 1998
jwilmer@rayproffitt.org
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