December 1, 2011 —
In a case decided in 2006, Colbert v. the Pennsylvania Department of Environmental Protection (DEP) and Middle Creek Quarry, a judge overturned a decision by the DEP to grant a major non-coal mining permit to quarry operator John Malti of Palmyra Township in Wayne County. Key to the rationale for vacating the permit was Section 3308 of the Surface Mining Act. That legislation says that the agency cannot grant a permit if:
“(i) the applicant has failed or continues to fail to comply with any of the provisions of this act or the act of May 31, 1945 (P.L. 1198, No. 418), known as the Surface Mining Conservation and Reclamation Act; or
(ii) the applicant has shown a lack of ability or intention to comply with any provision of this act or the Surface Mining Conservation and Reclamation Act, as indicated by past or continuing violations.”
In the case of the Middle Creek Quarry, at the time the major mining permit was granted there were no outstanding notices of violation (NOVs) or compliance orders. However, the DEP had previously found numerous and repeated violations on the quarry’s three existing five-acre permits, almost none of which had been remediated on a timely basis. The court concluded that the DEP had violated (b)(1)(ii) above, and that the issuance of an additional permit was hence not permissible.
The court, in short, forced the DEP to behave in a way in which most people behave out of plain common sense. When one trusts somebody with a small area of responsibility, and finds that they do not live up to even that small trust, one does not normally entrust them with a larger area of responsibility. Yet observing the Middle Creek case and the more recent, pending case of the Holbert Quarry in Lackawaxen, PA, that seems at least sometimes to be DEP policy.
The Colbert decision, for instance, says of DEP inspector Colleen Stutzman, “While she was aware that Middle Creek had been issued a compliance order for overmining, in her view, the operator had the option of choosing to file an application for a Large Permit in order to avoid further enforcement by the Department.”
Similarly, in the case of the Holbert Quarry, in 2007 an inspector told Holbert that no enforcement action would be taken against Holbert for the mining he had already done in excess of his permitted 10 acres if he succeeded in getting approval for a major mining permit.
To us, this is about like telling your teenagers they can use the family car as long as they get home by 11 p.m., having them come back drunk at 1 a.m. with the door caved in, and deciding that the solution is to buy them their own car and eliminate the curfew.
Holbert did not actually get his major mining permit in 2008, but nevertheless expanded operations to a total acreage of close to 15 acres, as noted in the inspection report of July 2011. In the Holbert case, as in the Middle Creek case, the idea that the owners would apply for a major mining permit was used as a rationale not even to issue formal citations, even though both had gone over their permitted acreage. In fact, both the Colbert decision and the Holbert inspection reports contain numerous cases in which an inspector noted something that was contrary to regulations, but issued only an oral warning, not an NOV or compliance order. This practice makes claims that a quarry has “no violations” less meaningful than one might think, as recognized by the Colbert judge, who included consideration of the many instances in which there had been a failure to respond to such warnings in concluding that the operator had “a lack of ability or intention to comply with any provision of this act.”
We don’t know whether a judge would find the history of compliance in the Holbert case to be sufficiently disturbing to overthrow a decision by the DEP to grant a major mining permit. But we think the Colbert example makes it particularly important to keep track of what happens at the quarry going forward, with regard to the current schedule of compliance deadlines. In the July inspection report, a compliance date of September 26 was set for reclamation of the entire excess acreage mined. But when the quarry was inspected on September 26, the deadline was extended, without explanation, into a phased program that terminates in November of next year.
It’s pretty obvious that one compliance deadline has been missed already, and with no apparent consequences imposed. There are further deadlines coming up. If they also are missed, and if the DEP grants the permit anyway, it looks like the agency is setting itself up for a challenge under Section 3308. The next deadline is December 26. Stay tuned.