Supervisor Gene Lerch, on behalf of the township, presented the case at an April 1 DEP hearing that there is water polluted by acid mine drainage coming from the Weaver II mine site along Miola Road between Miola and Helen Furnace, and that TDK Coal should not have its bond money returned until the problem is fixed.

The bad water is possibly affecting ground water and McGourney Run, a small tributary to the Clarion River along a stretch designated as “scenic” under the federal Wild and Scenic River System.

TDK Coal of Brockway surface-mined coal at the site between June 2002 and August 2003, then back filled, graded and replanted the land in the fall of 2003. Sheep now graze the hilltop mine site.

Department of Environmental Protection district compliance manager Joe Ferrara said at the April 1 hearing DEP would announce its decision in 30 days on whether to release $36,275 in bonds to TDK.

DEP spokesman Tom Rathbun, based in Harrisburg, said May 5 that officials at the Knox DEP Mining office would issue a decision as early as this week, and hope to set up a meeting with township supervisors to discuss the decision.

The decision is taking a little longer than expected so DEP officials can consider information they received recently. “We hope to wrap this up this week,” Rathbun said.

Lerch told fellow supervisors at their regular May 5 meeting of a letter from Barb Songer, president of the local group Protect Environment And Children Everywhere.

Songer’s letter invoked DEP’s mission to protect the commonwealth’s air, land and water, and noted the prevalence of acid mine drainage affecting area streams.

PennFuture says…

Lerch said he was most impressed by a letter to DEP from senior environmental attorney Kurt Weist of Citizens for Pennsylvania ’s Future, also known as PennFuture.

Weist’s six-page letter details state mining laws and a number of court cases establishing precedents he said require DEP to deny TDK’s request for bond release.

He said there was little question under state statutes and case law that the bond must be withheld if water pollution is occurring.

DEP officials argue that AMD at the site is coming from old mines existing long before TDK dug Weaver II.

But Weist wrote that some preexisting pollution was noted on TDK’s permit application, but the company did not ask to be relieved of that liability and is therefore responsible for any pollution from the site.

Weist said water samples show AMD is occurring – giving as an example a reading of 62 milligrams per liter of iron in water from the site, compared to the maximum limit of seven milligrams per liter.

Weist cited various cases where DEP won very similar court cases against mine operators seeking bond release. Weist himself may have worked on some of these cases, having spent nine years as a litigator for DEP.

He also noted that explanations by DEP officials, including one signed by DEP secretary Kathleen McGinty, were not supported by evidence, as neither TDK nor DEP identified a red water discharge in a ditch along Miola Road before mining took place.

“The settled law in Pennsylvania holds that if a mine discharge does not meet (state regulations) the mine operator is responsible for treating that discharge,” Weist wrote.

Three different court cases, he wrote, “Established valuable precedents for which the department fought long and hard. These precedents do no good, however, if the department fails to abide by them.

“Instead of concocting unsubstantiated and legally irrelevant arguments, the department should adhere to the principles of (three court cases), under which the department must deny TDK’s request for bond release.”

Lerch said he was very impressed by Weist’s letter and arguments, and very pleased by the attorney’s involvement.

“I don’t know how he became involved, but he is a very knowledgeable individual,” Lerch said, adding that he personally wrote Weist to thank him for the testimony.

Informed of the DEP’s plan to present its decision in a meeting with township supervisors, Lerch said he wondered why such a meeting was necessary, since an official letter would serve the purpose.