NOTICE TO:

Hon. James Seif, Secretary, Pennsylvania DEP;
William Plassio, Regional Mining Manager, Pennsylvania DEP;
Office of Chief Counsel, DEP;
Hon. Michael Fischer, Attorney General of Pennsylvania; 
Hon. Bruce Babbitt, Secretary of the Interior;
Katharine L. Henry, Director, OSM;
Allen Klein, Regional Director, OSM; and,
Consol (Enlow Fork Mine and Baily Mine).

RE: Notice of Intent to File a Lawsuit Pursuant to the Clean Streams Law, 35 P.S. §691.601; the Bituminous Mine Subsidence and Land Conservation Act, 52 P.S. §1406.13; the Federal Water Pollution Control Act (Clean Water Act), 33 U.S.C. §1365; and the Surface Mining Conservation and Reclamation Act, 30 U.S.C. §1270.

Dear Sirs:

I am writing to you on behalf of the Raymond Proffitt Foundation (RPF), P.O. Box 723, Langhorne, PA 19047, whose members are aggrieved by the below listed matters.

The Pennsylvania Department of Environmental Protection (DEP) has allowed the Enlow Fork Mine and Baily Mine to cause pollution to the main stem and, inter alia, the Templeton Run and Rocky Run tributaries of Enlow Fork through subsidence under these areas. Enlow fork forms the border of Washington and Greene Counties, Pennsylvania. Longwall mining has subsided portions of Enlow Fork, replacing naturally spaced pools, riffles and glides with a series of long deep pools that have filled with sediment. Longwall mining has changed the use of this stream in the subsided sections from a stream with a substrate of natural cobble and gravel to a stream with an unnatural amount of fine-grained sediment in the pooled reaches. In portions of the subsided sections, riffles and glides have been eliminated. Riffles and glides provide habitat for darters and certain species of minnows that form the base of the food chain. The aquatic life has changed because its environment has changed, thereby causing a loss of fish and other aquatic and invertebrate life. This substantial reduction in species, in reproduction and in numbers has impaired and eliminated existing uses of this stream.

In addition to increased sedimentation, longwall mining has changed the channel morpometry of Enlow Fork. The slope of the stream has flattened in the pooled reaches, and steepened over the unsubsided sections (gates). Moreover, the stream is now lower in its bed, which means that it is no longer able to overtop its banks and spread out onto the adjacent floodplain given the same volume of water that the stream carried before mining. This change has introduced a long term instability into the stream, and will cause the stream to cut into its banks, and erode headward, in an effort to reach a new equilibrium. Soil eroded from the banks will cause bank failure, and trees to topple into the stream, which will introduce more instability into the stream. Sediment eroded from the bed and banks will degrade Enlow Fork even outside of the mined area.

The Enlow Fork Mine and Baily Mine also have mined under springs, seeps and ponds, and have caused loss of water in these resources. This loss of water has caused several tributaries to Enlow Fork to have reduced flow or dry sections that are then no longer capable of supplying water and nutrients to Enlow Fork. The loss of water has degraded aquatic life such as salamanders, fish and macroinvertabrates that depend on flowing water in these tributaries.

In several areas, rock strata has buckled and streams now are captured, flow underground for some distance, and then reappear. There is a loss of water to the underground.

DEP has known of the physical disturbance to Enlow Fork and its tributaries for several years and has failed to stop said activity.

Preliminary findings from other longwall mines show streams with subsided reaches, and in some cases streams with dry reaches. These mines include the following: Blacksville No. 2, Cumberland, Emerald, Dilworth, and Maple Creek. Thus, this problem is systemic and needs to be examined throughout the entire commonwealth.

DEP is continuing to issue permits and amendments to permits allowing the same mining activities under other water resources which are causing the same problems as described above.

Longwall mining under streams, springs, seeps and ponds has and is causing substantial alterations of the physical, biological and chemical aspects of these water resources, and as such constitutes pollution.

Failure to maintain and protect the uses of Enlow Fork and its tributaries, springs, seeps and ponds constitutes pollution and is a violation of state antidegradation laws and policy. See the Clean Streams Law, 35 P.S. §691.1, et seq. and 25 Pa. Code §§ 93.3 and 93.4a.

The above activities also violate the Mining Regulations which require operators to minimize disturbances to the hydrologic balance (25 Pa. Code §89.52); to not discharge water to underground mines (25 Pa. Code §89.60); to protect fish, wildlife and related environmental values (25 Pa. Code §§89.65 and 89.82); and, to maintain the value and reasonably foreseeable uses of perennial streams (25 Pa. Code §89.142a (h)).

The above activities also constitute stream encroachments without a required permit. See 25 Pa. Code §§105.11 and 105.13.

DEP failed to require and find in writing that the operator has affirmatively demonstrated there is no presumptive evidence of potential for pollution to waters of this Commonwealth, as required by 25 Pa. Code §86.37 (a) (3).

DEP failed to make an assessment of probable cumulative impacts of these activities on the hydrologic balance, as required by 25 Pa. Code §§86.37 (a) (4) and 89.36.

These activities also violate the Clean Water Act, 33 U.S.C. §1251, et seq. and the Surface Mining Conservation and Reclamation Act, 30 U.S.C. §1201, et seq.

DEP's violation of the above laws constitutes failure of DEP to perform actions which are not discretionary.

RPF requests that DEP take the following action:

DEP shall order Enlow Fork Mine, Bailey Mine, and all other longwall mines to immediately cease mining under streams, tributaries, springs, seeps and ponds until such time that DEP has analyzed and determined that such mining will not cause changes in these water resources as described above.

DEP shall meet with other federal and state agencies to determine the best methods of correcting and preventing such problems. Such agencies may include U.S.G.S., U.S. Fish & Wildlife, Pa. Fish & Boat Commission, and the Pa. Game Commission.

DEP shall require Consol to develop a restoration plan for all subsided sections of Enlow Fork, and its tributary streams, using applied fluvial geomorphology. The plan must be submitted to agencies such as the Pa. Fish and Boat Commission, U.S. Fish and Wildlife Service and Pa. Game Commission for review and approval.

DEP shall require all future longwall mine applications for all permits or amendments to analyze (using a neutral third party such as U.S.G.S.) and then determine whether such mining can be done under streams, tributaries, springs, seeps and ponds without causing changes in these water resources as described above.

In the event longwall mining cannot be conducted under such water resources without harm, then DEP shall deny permits for such mining, or in the alternative, require some other method of mining that will not cause such problems. DEP shall require a cumulative hydrologic impact of all existing damage to these water resources and require the responsible mining companies to repair all damage.

DEP shall determine a fine based upon the willfulness of the violation, the severity of harm, costs of restoration, and the continuing nature of the violation. The Clean Streams Law provides for a civil penalty of up to $10,000. 35 P.S. §691.605. Each day of a continuing violation may be considered a separate penalty.

This 60 Day Notice also notifies Consol (Enlow Fork Mine and Baily Mine) that it is in violation of the above laws for the reasons given above. RPF would request that Consol (Enlow Fork Mine and Baily Mine) immediately cease all mining under the water resources described above; repair all damage to said resources; pay all fines to be determined by DEP; and agree not to mine under the above-described water resources.

This 60 Day Notice also notifies the Office of Surface Mining (OSM) that it has failed in its nondiscretionary duty to inspect and to order Enlow Fork Mine, Baily Mine, and others to cease operations over streams because of the above environmental harms. OSM has had considerable notification by various federal and state agencies that such practices are causing significant environmental harm to water resources and that Pennsylvania has failed to take appropriate action. OSM is required under 30 U.S.C. §§1271 (a) (1) and (2) and under 30 CFR §701.4 (b) (4) to order such cessation orders.

RPF gives DEP, Consol (Enlow Fork Mine and Baily Mine), and OSM sixty days from receipt of this Notice to correct the above matters.

All communications should be directed to John Wilmer, Attorney for RPF, 21 Paxon Hollow Road, Media, PA 19063 or at (610) 565-2736.

Respectfully submitted,

 JOHN WILMER
Attorney for the
Raymond Proffitt Foundation

cc: Carol Browner, Administrator of the EPA;
Bradley Campbell, Esq., Regional Administrator of the EPA;
Hon. Janet Reno, Attorney General;
 

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