STOPPER Raymond Proffitt Foundation P.O. Box - 723, Langhorne, Pa. 19047-0723 gateway@rayproffitt.org
Winter  98/99	http://www.rayproffitt.org	Margaret Spanier, President

VESTA MINING COMPANY WITHDRAWS VALLEY FILL PERMIT BECAUSE IT DOES NOT WANT TO CONTINUE LITIGATION WITH THE FOUNDATION
by John Wilmer, Esq.

On November 16, 1998, the Raymond Proffitt Foundation learned that Vesta Mining Co. was withdrawing its valley fill permits, which the Foundation was fighting in three different legal actions. In conversations with Vesta's attorney, it was stated that Vesta's assets, including the permits, were purchased by Laurel Run Mining Co., which is part of the CONSOL Coal Group. Vesta's attorney further said that the new owners did not want to continue the litigation, and therefore were requesting that the permits be withdrawn. A newspaper article quoted the coal company as saying that the withdraw of the permit was done for business reasons.

The permits had approved Vesta's plans to create a valley fill in Scenery Hill, PA to handle over 30 million tons of coal refuse from a proposed longwall mine that would affect over 8,000 acres. The Foundation argued that this project would destroy over three acres of wetlands and two miles of stream, and cause harm to nearby residents who were members of the Foundation. The Foundation had maintained that the antidegradation water laws prohibited this type of destruction.

The Foundation believes that the permit withdraw was done because the coal company knew it was going to lose the appeal. In fact, the Foundation had gone as far as it could in the litigation and was awaiting a critical decision by the Board that could have ruled in the Foundation's favor. It seems like too much of a coincidence that the permit was withdrawn just before the Board issued its ruling. It also seems like too much of a coincidence that an adverse decision would affect only one other valley fill, also owned by CONSOL.

Joseph Turner, a Director and Officer of the Foundation, said that "this action shows that if good people can unite and stand together, they can force the mining industry and DEP to obey the law." The Foundation has argued in this and other cases that the mining industry has been allowed to destroy Pennsylvania's water resources despite tough laws that prevent other industries from doing the same.

The Foundation lawsuits that would be affected by this withdrawal are the following: 1) the appeal of the valley fill permit to the state Environmental Hearing Board; 2) the Complaint in Pittsburgh Federal Court against the Secretary of the DEP for issuing the permit without approval from the federal Office of Surface Mining (OSM); and 3) the Complaint in Pittsburgh Federal Court against the U.S. Army Corps of Engineers for allowing the conversion of waters of the U.S. into a waste disposal site.

Turner also said that "we are happy for our members who live near Vesta, because now their streams and way of life will be preserved. This is not, however, the end of our fight with valley fills. We will continue to oppose them because they violate the water laws of both this Commonwealth and the United States."

Consultants Tom Cahill and Jim Schmid, while also happy for the members, were disappointed that these issues would not get to the court for resolution. Both consultants had put in much time and effort, including writing expert reports on the stream and wetlands destruction.

****

VALLEY CREEK COALITION SUES DEP AND PENNDOT
OVER THREAT TO VALLEY CREEK FROM ROUTE 202
STORM WATER DISCHARGES
by John Wilmer, Esq.

On November 25, 1998 the Valley Creek Coalition filed an appeal to the Pennsylvania Environmental Hearing Board from issuance of a storm water permit to PennDot by Pennsylvania Department of Environmental Protection. The permit allows PennDot to discharge untreated storm water into Valley Creek, a watershed rated as Exceptional Value by Pennsylvania regulations.

The Raymond Proffitt Foundation is a member of the Valley Creek Coalition (VCC), which has a combined membership of over 2,000 people and organizations who are dedicated to protecting the Valley Creek Watershed. The coalition also includes the following organizations: Green Valleys Association, Open Land Conservancy of Chester County, Pennsylvania Environmental Defense Fund, Schuylkill River Keeper, Valley Forge Chapter of Trout Unlimited, and West Chester Fish, Game & Wildlife Association. John Wilmer, General Counsel for Raymond Proffitt Foundation, represents all eight of the Appellants. Valley Forge National Historical Park is part of the coalition, but did not join in the appeal.

VCC's opposition is based upon Valley Creek's status as an Exceptional Value (EV) watershed. EV streams are under the Special Protection regulations, represent our best streams, and are approximately 1 percent of Pennsylvania's waterways. VCC's position is that EV streams must be treated differently than regular streams. They must be given the special protection they deserve.

PennDot is planning to add two lanes to Route 202 in Chester County. These new lanes will increase the hard surface area of the roadway. To accommodate the additional storm water run-off, PennDot plans to build several storm water sedimentation basins that would capture road run-off. The sedimentation basins would allow the sedimentation to settle to the bottom and allow the water to flow out the top. This excess water would be discharged to tributaries of Valley Creek, which also are EV.

VCC is concerned about this plan for several reasons. First, this plan is no different from the way PennDot, or other developers, would handle storm water for any stream. Valley Creek and its tributaries are all EV and should be treated differently.

Next, there is concern that sedimentation basins will allow concentrated sediment to flow out, especially during storm events. Besides sediment, these basins will be holding untreated oils, grease, and pollutants from the highway. There are no provisions to treat this contaminated soup before it flows into Valley Creek.

Another concern is that the storm water will be heated to air temperature, and during the summer this can be quite hot. Releasing this hot water into the cooler waters of Valley Creek constitutes thermal pollution, thereby harming the trout who need cooler water, especially in the summertime.

Yet another concern is the sudden release of this volume of water. Too much water released at one time can erode the banks of the tributaries and of Valley Creek. You can see the existing erosion of the banks of Valley Creek just before it enters the Schuylkill River.

Finally, the water that will be captured from the entire roadway and released will flow out to the Schuylkill River, and not to Chester County. If the highway were not in place then the rainwater would be absorbed into the groundwater system and recharge the streams and water supplies of the County. Discharging this water from sedimentation basins deprives Chester County residents of this valuable resource.

VCC is opposed to the way PennDot is treating Valley Creek. This watershed is more than in the top 1 percent of Pennsylvania's streams. The vast majority of EV streams are in wilderness areas where they are seldom visited, let alone threatened. Valley Creek is a unique EV stream because of its location, so near a heavily populated area. This EV stream is used by many people, and on a regular basis.

If we are not going to protect this stream, then what streams are we going to protect?

****

Resurrecting the Lehigh River
by Jim Slinsky

There are inevitable and sometimes, insurmountable problems associated with the restoration of any waterway. After decades of behavior regarding a stream or river, political and social forces become entrenched and accepted as just and logical. Often, this treatment does not address the best health of the ecosystem. Such is the scenario surrounding the Lehigh River.

Prior to the intense dam construction of the 1930’s-1950’s, the Lehigh River existed as an abused river. Acid mine drainage and raw sewage were prevalent throughout its length. Coal silt covered the bottom as a result of the 24 dams erected to flood the canal system. The Lehigh was a major transportation system for coal from Jim Thorpe to Easton.

In 1960, the Army Corps built the infamous Francis E. Walter Dam as a flood control project to protect the lower valley. Water quality releases were not authorized as part of the operating criteria. Flood control was the only stated purpose of the dam. Until 1972 and the advent of Hurricane Agnes, the Lehigh River existed in its most polluted state. These were the dark days for the Lehigh River. The hurricane broke almost all of the dams and the river flushed clean.

In 1988, the federal government passed the Water Resource Act. This bill reauthorized the operation of Francis E. Walter Dam to include recreation, boating, fishing and specifically, whitewater rafting. There is great debate as to the meaning of this act. The legislation is not specific as to where the recreation, boating and fishing should take place. Some say in the reservoir pool and others contend in the river below the dam. This debate will probably be decided in court.

Subsequent to the act, Beltzville Lake was created for recreation and water quality releases to serve the Lehigh River. With a release capacity of 90 cfs maximum, Beltzville does little to change the composition of the Lehigh's daily 500 to 1000 cfs flows. Furthermore, Beltzville is located 30 miles below the Francis E. Walter Dam. Its overall impact is insignificant.

The Lehigh River is still plagued by acid mine drainage and sewage plant overloads. There is an on- going AMD study to qualify and quantify the extent of impact. The Lehighton STP is the largest current culprit, but there are other sources of untreated and partially treated sewage. All of these sources and problems are under continuous scrutiny of the Lehigh River Stocking Association. The EPA and DEP are currently involved to address the STP debacle. Continuous pressure is being applied to the Army Corps and Delaware River Basin Commission to change the water quality standards and release schedules of F.E. Walter to abate this contamination. These are the battle lines and they have been clearly drawn.

The most extensive and exhaustive studies ever completed on the Lehigh River have been undertaken by the "Lehigh River Watch" and Mr. Robert Miller. His results clearly and conclusively reveal more water dilutes the effects of AMD and STP overloads. Radical pH swings have been documented and attributed to the excessive algae growth caused by the continuous fertilization of the river. Water quality releases will mitigate these environmentally damaging events and dramatically improve this ecosystem and fishery. It is the support of the public in this matter that we seek so strongly. The court of public opinion will have a major impact on the Army Corps and their release policies.

For more details regarding this environmental fiasco, please contact the LRSA at; http://members.aol.com/mzovak/lrsa.html

In closing, a final thought: The lowest place in hell is reserved for those who remain silent during an environmental crisis. Sincerely yours, James J. Slinsky, Executive V-P, LRSA

<<<<END>>>>  

return