Renewal of Mine Discharge Permit in Fayette County Ruled Unlawful

Aug. 24, 2005

The Mountain Watershed Association (MWA) and Citizens for Pennsylvania's Future (PennFuture) announced that the Environmental Hearing Board has sustained their appeal challenging the Pennsylvania Department of Environmental Protection's (DEP) renewal of a wastewater discharge permit for the Potato Ridge clay mine in Fayette County operated by Kaiser Refractories.

The Board's June 23, 2005 ruling revoked the permit renewal and sent the permit back to DEP for further consideration. DEP's payment of the appellants' attorney's fees and costs in accordance with an agreement reached last week will resolve the only issue remaining before the Board.The appeal is the first action brought by MWA's Yough Riverkeeper project, which is part of the international Waterkeeper Alliance( Yough Riverkeeper Beverly Braverman, who is also the Executive Director of MWA, emphasized that nearly every sample of the treated mine drainage taken during the preceding five-year term of the permit violated the permit's maximum concentration limits for manganese.

"The law flatly prohibits DEP from renewing a permit where violations of the permit are continuing," said Braverman. "The Board ruled that DEP acted unlawfully by renewing the permit without doing anything about the ongoing violations."

The Board also ruled, as DEP conceded, that the renewal of the permit was inconsistent with a pollution cleanup plan for the receiving stream, Laurel Run, prepared by DEP and approved by the U.S. Environmental Protection Agency in 2003. That cleanup plan, known as a Total Maximum Daily Load (TMDL), establishes the maximum amounts of specific pollutants that may be discharged into Laurel Run.

PennFuture Senior Attorney Kurt Weist explained, "The TMDL for Laurel Run assumed that the Potato Ridge Mine would discharge no aluminum into Laurel Run, so the renewed permit should have prohibited the discharge of aluminum. Instead, DEP placed no limit at all on the amount of aluminum Kaiser Refractories could discharge." Weist further explained that as a result of deficiencies highlighted by the appeal, DEP is in the process of amending the TMDL for Laurel Run.

The Board left one issue unresolved. PennFuture and MWA argued that renewal of the permit was barred because the $223,000 reclamation bond posted by Kaiser Refractories is insufficient to guarantee future treatment of the mine discharges. Although recognizing that DEP "does not dispute that the amount of the bond is inadequate," the Board ruled that because DEP "has not yet concluded its review as to what a proper bond amount should be," it could not decide the issue now and sent the question back to DEP to complete its analysis.

One possible solution to the ongoing discharge violations would involve building a new treatment system to handle the Potato Ridge Mine discharges as well as several discharges from the adjacent Smith Mine in Ohiopyle State Park. Kaiser Refractories has taken the lead in designing this combined system and advocating for its development with DEP and the Department of Conservation and Natural Resources, which supervises and maintains the State Park. Laurel Run is a tributary of Meadow Run, a trout fishery in Ohiopyle State Park that is frequented by anglers, swimmers, kayakers, and hikers. Both streams are designated as "High Quality" waters.

Source: DEP