STOPPER  Raymond Proffitt Foundation  P.O. Box - 723, Langhorne, Pa. 19047-0723  gateway@rayproffitt.org  http://www.rayproffitt.org
SUMMER 1998		Margaret Spanier, President

  VALLEY FILLS LAWSUITS
by JOHN WILMER, ESQ.

A valley fill will bury a stream under millions of tons of coal refuse. Supposedly, the stream is preserved because it is enclosed in a pipe, sometimes several miles long. In reality, the existing stream channel, vegetation, banks, bugs, fish, sunlight, oxygen, etc that make up the stream are all eliminated. Whatever water is allowed through this system hardly constitutes a stream. And while the water may flow for a while, it too will join the rest of the stream into oblivion because the valley fill prevents the recharge of rainwater into the groundwater system, thereby preventing new base flow from reaching the once living stream.

RPF has filed three lawsuits over the valley fill's issue. The first was filed in federal court in Pittsburgh and sought to prevent DEP from issuing new valley fill permits until the federal Office of Surface Mining (OSM) had decided Pennsylvania's valley fill law. RPF had previously forced Pennsylvania to submit that law to OSM. This case has been put on hold while the state lawsuit is being heard.

OSM finally issued its decision on the above state law, on April 22, 1998. RPF was pleased that OSM required DEP to add tougher language to its existing coal refuse disposal law. RPF was not, however, convinced that the new language would prevent valley fills, and therefore sued OSM in federal court in Harrisburg.

This lawsuit seeks several objectives. First, RPF is asking the Court to order OSM to clarify its language concerning valley fills in Pennsylvania. While the new tougher language appears to prohibit valley fills, there are too many weasel words from EPA that would allow valley fills to slip in the side door. In addition, the practice of EPA, OSM and DEP is to allow valley fills, despite existing language. We want the Court to order OSM to call a valley fill a valley fill.

Next, we are asking the Court to rule that if OSM really is allowing valley fills, that it be ordered to stop this practice. This is the central argument in all of our cases. Valley fills destroy the existing uses of streams, and that violates the antidegradation laws that we fought so hard for in Pennsylvania.

Our third lawsuit is the biggest in terms of time and money. We have appealed the issuance of a DEP permit to Vesta Mining Co., which seeks to bury two miles of stream, over three acres of wetlands and over two-hundred acres of woodlands under a 31 million-ton valley fill of coal refuse. This matter is before the state Environmental Hearing Board (EHB).

What is amazing about the above permit is that DEP has made no provisions for controlling the acid mine runoff after the site is closed in ten to twenty years. It is going to simply let the operator walk away. And yet, Pennsylvania leads the nation in abandoned mine lands and acid mine drainage streams.

We are still in the discovery stage of this lawsuit. Our experts, Tom Cahill and Jim Schmid, have filed their expert reports, and we await expert reports from DEP and Vesta. So far we have withstood an attack on standing. We have counterattacked that DEP did not have the authority to issue the permit. We will make this argument before the EHB in late July.

RPF filed the above lawsuits to help members who live next to or near these monster valley fill operations. These same members also will be affected by the proposed long-wall mine that will supply the refuse for the valley fill. This long-wall mine will affect over 8,000 acres of land, including perennial streams, wetlands, and homes and properties.

Long wall mining is about fifteen years old and removes all the coal beneath the ground, including supporting pillars of coal. Anything above the coal seam is immediately affected by subsidence, including streams, springs and homes. Pennsylvania passed a law in 1994 allowing for this wholesale destruction.

We are considering filing an appeal to the mining permit as well.

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Pennsylvania Legislators Want A Plan And A Ban
by Lynn Landes

A vanguard of Pennsylvania legislators appear determined to control waste imports, as the state's Governor Tom Ridge waits in vain for Congressional action.

State Rep. Mark McNaughton has proposed legislation, House Bill 2512, calling for a moratorium on issuing permits for new waste disposal facilities or their expansions until the PA Department of Environmental Protection (DEP) has "developed, implemented and received Environmental Protection Agency (EPA) approval for a State Solid Waste Management Plan, as required by the federal Solid Waste Disposal Act." Rep. McNaughton and Rep. David Steil, along with other Pennsylvania legislators, are also planning to submit legislation that will invoke a Waste Disposal Ban on yardwaste. If passed, the Yardwaste Disposal Ban will be the first comprehensive ban in Pennsylvania. Current state recycling mandates do not apply to municipalities with populations exceeding 5,000.

"Reps. McNaughton and Steil are headed in the right direction. Act 101 and the DEP's myriad of regulations and voluntary programs do not constitute a waste management plan, in compliance with RCRA requirements. Furthermore, Waste Disposal Bans are the key to controlling waste imports."

On the issue of Disposal Bans, refer to Federal Court of Appeal, 7th Circuit (Aug 1995) in National Solid Waste Association v. Meyer (representing Wisconsin). Although the court ruled against Wisconsin's attempt to limit waste imports, it suggested an alternative strategy. The court indicated that although states cannot discriminate against out-of-state garbage, states can control waste imports through the implementation of non-descriminatory regulations, such as comprehensive Disposal Bans.

In a May 6, 1998 DEP publication, Update, Governor Tom Ridge insisted that states cannot control imported waste without Congressional action. "A string of legal decisions from 1978 to the early 90s has made it clear that nothing short of congressional action is going to give states the ability to control imported waste," Gov. Ridge said.

I disagree with Gov.Ridge's assessment. These court decisions only apply to discriminatory and protectionist behavior by the states, but do not preclude steps to ensure environmental protection regarding the disposal of waste.

The proposed Interstate Waste Legislation would be ineffective because it only applies to "unwanted" waste. Economically disadvantaged communities will continue to be compelled to accept new waste disposal facilities. Additional information can be found at: http://www.ZeroWasteAmerica.org"

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ROUTE 202---CHESTER COUNTY
by JOHN WILMER, ESQ.

It seems as if the Foundation is forever fighting over Route 202, but this time it is in Chester County. PennDot plans to widen this section from four lanes to eight. The widening is needed, and is supported by the environmental groups in the area.

What is not needed, however, is business as usual from PennDot and DEP. They want to control the storm water the same old way---by discharging it into Valley Creek, an Exceptional Value stream.

We are members of the Valley Creek Coalition, along with Valley Forge Trout Unlimited, Green Valleys Assoc., and others. We are trying to convince PennDot and DEP to use BMP, or Best Management Practices for controlling the oil, grease and salts that will flow into Valley Creek. Rather than channel the water directly into the creek, we want PennDot to build infiltration channels along the roadway. These channels will allow the water and pollutants to drain into the ground, and thus never reach Valley Creek overland. The soils will filter the road pollutants, and the water will become part of the groundwater recharge system.

Our consultant, Tom Cahill, P.E., has studied this watershed for over 25 years and is concerned about the loss of water to the creek. Every shopping center in this corridor adds impervious surfaces that prevent rainwater from recharging the groundwater system. The water that falls on these areas is either taken back by evaporation or is put into sedimentation basins. The water is then channeled to Valley Creek, where it flows into the Schuylkill and beyond.

But if water can infiltrate into the groundwater system, then it is available for the local streams. Valley Creek, and all of its tributaries, primarily get their water from underground sources all along the waterway, thus providing even flow. But when water is collected and held in a basin, it is not available for recharge. In addition, when that water is dumped into the stream in one location, it can cause erosion.

The Raymond Proffitt Foundation, and others, will testify at the public hearing on July 21, 1998. We hope that PennDot and DEP will listen.

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WHAT IS THE VALUE OF A SINGLE STREAM
by TOM CAHILL, P.E.

(Editors Note: The following is a reprint from Tom Cahill's Expert Report, filed in the valley fill case against DEP and Vesta Mining Co. The stream we are trying to save has no name, only "unnamed tributary." DEP has taken the position that valley fills can destroy smaller streams such as this, as long as the larger streams are protected. We disagree.)

What kind of environmental value do we assign to this small stream, situated in the hills of Washington County? Is the unnamed tributary an important part of Daniels Run? Of Ten Mile Creek? Of the Monongahela River? It is difficult to define the value of an individual stream as a part of the larger drainage systems, but one must first consider each stream on its own merit. If it meets the criteria and conditions discussed previously, then it is one of a larger number of individual elements, each of which contributes to the value of the sum. One might consider the value of an individual in the context of their community, the Commonwealth, the country or the world, and ask if their net value diminished in the context of the larger number. Since it is a particularly American perspective which places great value on the individual, then a living stream system is both unique and important.

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JOIN

Join the Raymond Proffitt Foundation to protect your Pennsylvania constitutional rights to clean air and water. The annual membership dues are $25, $15 for students and senior citizens. Make out your check or money order to the Raymond Proffitt Corporation (a non-profit 501 (c) (3) corporation), P.O. Box 723 , Langhorne, PA 19047-0723.

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