EHB Hears Center’s Call For Adequate Groundwater Monitoring System

After considering testimony in 14 days of hearings, and extensive post-hearing briefs, the Pennsylvania Environmental Hearing Board disapproved Hazleton Creek Properties’ (HCP) groundwater monitoring plan for its multi-year deposition of residual waste at the former Hazleton City Landfill, reversing the DEP’s 2005 approval of the plan.  The Center’s client, Citizens United to Safeguard the Environment (CAUSE) objected to the introduction of 15 million tons of dredge, coal ash, and kiln dust mixture onto the former mine land, which had also been used for illicit dumping of thousands of barrels of hazardous wastes in the 1960s and 1970s.  The Board ordered that HCP may not operate under its DEP general permit at the site, which sits just a few hundred yards from residential neighborhoods within the City of Hazleton, until a new groundwater monitoring plan could be approved.

 DEP’s approval of a new plan must be consistent with the Board’s opinion in this citizen challenge of HCP’s permit in that the plan must allow for meaningful assessment of current groundwater quality conditions adjacent to the site and potential adverse changes that may result from the presence of contaminants in the dredge mixture.

Dilution Solution?

  The project developer, HCP, had argued that a Byzantine warren of mine gangways hundreds of feet beneath the site would carefully capture all infiltrating water from the surface and conduct it through a tunnel past the Hazleton Shaft, 1.5 miles East of the site, and that samples taken there  would reliably represent water quality impacts resulting from the project activity.  In this way, HCP hoped to avoid making significant financial investment in a groundwater monitoring well network.  The Center vigorously challenged this position, arguing that reliance on 50-year-old mine maps when subsidence is common was foolhardy, that some infiltrating water moved in other directions under the site, and that there would be major dilution from multiple other points of water flow into the tunnel prior to the Shaft sampling point.  The Center also maintained that without a proper network of upgradient and downgradient wells the ability to detect contaminants leaching from the site would be poor.
 

Unwarranted Risks:

The DEP-approved plan would have allowed HCP to proceed without drilling a single well to the mine pool waters below to obtain data in advance of placement of the dredge and to monitor changes during and after the multi-year project.  CAUSE argued that DEP was wrong to issue the permit when HCP had failed to demonstrate that its activities did not hold the potential to harm people or the environment as is required by regulation.  That failure was very apparent in the completely inadequate groundwater monitoring system that HCP intended to employ to track the impact of these massive quantities of residual waste on groundwater quality.  The Board agreed and determined that the plan presented unwarranted risks. In the Board’s rationale for the decision to require true groundwater monitoring, it stated:  “If the people of Hazleton are to have this project in their midst, they deserve some assurance that the Project will perform as expected and not harm them or their environment.”  November 2, 2007 Board Decision, p. 61.
 

Round 2:  Another General Permit

CAUSE had also challenged a DEP decision to allow HCP to use a general permit to deposit “regulated fill” on the Site.  Initially conceived as a method to build roads and a rail spur on the site to facilitate the delivery of the 15 million tons of residual wastes, it became apparent that the developers intended to use the 2nd general permit as a way to bring a million tons or more of dredge to the site without groundwater monitoring requirements.
 

Center Secures Settlement Yielding Major Well Network Improvements:

However, just prior to trial on the 2nd general permit, the Center negotiated a settlement which averted the need for the second round of hearings before the Environmental Hearing Board.  The agreement was executed in February, committing HCP to build a significant groundwater monitoring network, more extensive than would have been required by DEP on its own, that will serve to identify migrating contaminants under both general permits.   Under the terms of the Settlement, HCP will continue to utilize and monitor data from some of the pre-existing wells, but will now add five new wells to the network, several of which will finally reach mine pool depths hundreds of feet beneath the surface.

HCP submitted the agreed-upon improvements to the groundwater monitoring plan to DEP in timely fashion, and the DEP approved it promptly.  All wells are to be completed later this Summer.  The use of lysimeters to test the dredge directly will be an interim step, pending completion of the wells.

CAUSE remains engaged to ensure that the plan is implemented as agreed and to review the data the monitoring wells will generate, including through split sample testing.