September 10, Sent Via and Certified Mail

Transcription

1 September 10, 2012 Sent Via and Certified Mail Michael G. Forbeck Environmental Program Manager Waste Management Pennsylvania Department of Environmental Protection 400 Waterfront Drive Pittsburgh, PA RE: Proposed Consent Decree for Violations of the Resource Conservation and Recovery Act and Pennsylvania Solid Waste Management Act at the FirstEnergy Little Blue Run Impoundment in Greene Township, Beaver County, PA and Hancock County, WV Dear Mr. Forbeck: Thank you for the opportunity to submit comments on the consent decree to address the violations of the Resource Conservation and Recovery Act and Pennsylvania Solid Waste Management Act at the FirstEnergy Generation Corp. (FirstEnergy) Little Blue Run coal combustion waste (CCW or coal ash) impoundment in Greene Township, Beaver County, Pennsylvania, and Hancock County, West Virginia. The Little Blue Regional Action Group (LBRAG) sincerely thanks the Pennsylvania Department of Environmental Protection (PADEP) for taking enforcement action to address the serious and widespread ground and surface water pollution the Little Blue Run impoundment has caused and the risks the impoundment poses to public health and the environment. The Consent Decree is an important first step towards ensuring that FirstEnergy cleans up this site and the surrounding ground and surface waters, and complies with all applicable laws going forward. We appreciate your efforts to protect the health of Pennsylvania and West Virginia citizens and the environment and hold a major polluter accountable for compliance with the law. LBRAG s specific comments are set forth below. In addition, where LBRAG has proposed specific language, the proposed revisions are included in the attached Consent Decree. See Attachment A. 1

2 I. COMPLIANCE REQUIREMENTS A. Investigation of measures to reduce or prevent ground water impact 1. The Consent Decree should require that FirstEnergy propose a remedial option that achieves specific remedial goals and includes interim and final deadlines for implementation of the option by February 1, The Consent Decree s failure to establish deadlines for cleanup of ground and surface waters is a fundamental deficiency. While we recognize that any remediation plan along with the timeframe to complete cleanup will be dependent upon the results of a comprehensive site investigation and evaluation of remedial options, PADEP can and should require that FirstEnergy propose a remedial option that will achieve specific remedial goals and includes interim and final deadlines for implementation of the approved option. Although the Consent Decree states that FirstEnergy must undertake and complete an investigation and economic/technical feasibility assessment of certain measures to reduce or prevent ground water impact and submit a final report to PADEP no later than February 1, 2013, the Consent Decree fails to identify remedial goals or require FirstEnergy to propose a remedial plan. Consent Decree, 10(f). While the information requested by PADEP is helpful to better understand the widespread contamination caused by the Little Blue Run impoundment, the extensive, existing data already demonstrates that toxic pollution is leaking from the site into groundwater and surface water. FirstEnergy has dumped millions of cubic yards of coal ash, containing the very same toxic pollutants that have shown up in drinking water wells, groundwater monitoring wells, and seeps near the site, into the unlined impoundment. See, e.g., Letter from Lisa Widawsky Hallowell, Envtl. Integrity Project, et al., to Anthony J. Alexander, FirstEnergy Corporation, et al. (May 30, 2012) (Attachment B). The existing data shows that FirstEnergy has contaminated a large area of Pennsylvania and West Virginia groundwater with harmful and toxic chemicals, and this contamination has already impacted the nearby community and the environment. Id. Instead of including specific requirements to ensure a timely and complete remediation in the Consent Decree, however, PADEP has simply asked FirstEnergy to submit more data. Consent Decree, 10(f). The Consent Decree should identify specific remedial goals that FirstEnergy must achieve and require FirstEnergy to submit a proposed remedial plan that achieves these goals and sets forth interim and final deadlines for completion of the remediation. The overall remedial goal should be to minimize future generation of CCW leachate and capture and contain leachate plumes to prevent additional migration of pollution from the impoundment. At a minimum, FirstEnergy must meet federal and state water quality standards at specific compliance points within a reasonable period of time. The February 1, 2013 report should include a proposed plan (with interim and final deadlines) that will achieve the remedial goals. The Consent Decree should include these additional requirements. See Attachment A, 10(h)(xi). 2

3 2. The Consent Decree should require FirstEnergy to submit a comprehensive hydrogeologic analysis. FirstEnergy should submit a comprehensive hydrogeologic analysis with the February 1, 2013 report. A full hydrogeological characterization of the existing site, as opposed to segments of hydrogeological data in isolation, is necessary to identify the full extent of the contamination and develop an effective remedial plan. To our knowledge, a comprehensive hydrogeological analysis has never been done. In fact, FirstEnergy did not provide the required hydrologic analysis in its application for a new waste permit to expand the impoundment. Letter from Joseph Snyder, Pa. Dep t of Envtl. Prot., to Richard E. Sliper, FirstEnergy Generation Corp. (Oct. 13, 2011) (noting that the application was deficient because FirstEnergy had failed to submit a hydrologic and hydraulic analysis, among other things). At a minimum, the Consent Decree should be revised to require submittal of a thorough hydrogeologic analysis, including, but not limited to, hydrologic mapping and groundwater modeling to determine groundwater flow rates and plume migration. See Attachment A, 10(h)(x). B. Drinking water protection 1. FirstEnergy should be required to provide an alternative water supply for cooking, gardening, bathing, etc. not just drinking water. The Consent Decree should make clear that the requirement to provide an alternative water supply for affected homeowners means that FirstEnergy must provide an alternative water supply for cooking, gardening, bathing, etc. in addition to drinking water. The Consent Decree is not clear on this point and suggests that FirstEnergy must only provide an alternate source of drinking water. See Consent Decree, 10(c)(i) ( FirstEnergy shall... replace the affected water supply, For any and all drinking water wells, The Department expressly reserves its authority to require additional measures to protect drinking water sources ), 10(c)(ii) ( FirstEnergy shall offer... an alternate source of drinking water). The same adverse health impacts associated with drinking water contaminated with toxics would occur with ingestion of food cooked or grown with the contaminated water. Therefore, the Consent Decree should require FirstEnergy to offer affected homeowners under paragraph 10(c) a replacement water supply for cooking, gardening, bathing, etc. in addition to drinking water. See Attachment A, 10(c)(ii)-(iv). 2. FirstEnergy should be required to offer owners restoration or replacement of a water supply where monitoring shows an exceedance of a primary or secondary drinking water standards within 0.5 miles of a home using well water. The Consent Decree should expand affected homeowners to include owners of properties located within one-half mile downgradient of groundwater contaminated by the Little Blue Run impoundment. As written, the Consent Decree requires FirstEnergy to either restore the affected water supply or provide an alternative water supply to owners of homes within one-half mile of the site upon receipt of written direction from [PADEP]. Consent Decree, 10(c)(i). However, we are unaware of a comprehensive hydrogeologic analysis of this site; the full extent 3

4 of the contamination is simply not known at this time. See discussion supra A.2. In order to ensure all residents in harm s way are protected, paragraph 10(c)(i) should state that, if monitoring shows impoundment related pollution that exceeds primary or secondary drinking water standards within one-half mile upgradient of water extraction wells that are currently in use, FirstEnergy shall, upon written direction from PADEP, offer the owners of the downgradient wells the option of restoration or replacement of the water supply. See Attachment A, 10(c)(i). 3. The Consent Decree should state that FirstEnergy provide an interim alternative water supply during the restoration or replacement period where any primary or secondary drinking water standards are exceeded in drinking water wells. Where sampling results reveal that primary or secondary drinking water standards are exceeded in the drinking water wells of homeowners identified in paragraph 10(c)(i) and (ii), there is the potential for adverse health impacts from drinking, cooking, or otherwise using the water. In these cases, FirstEnergy must provide an interim, alternative water supply within sixty days, in addition to either restoring the water supply or providing a replacement water supply. The Consent Decree should be revised to expressly require this. See Attachment A, 10(c)(iii). 4. The Consent Decree should state, that if the owners of residences identified in paragraph 10(c)(ii) or other affected homeowner chooses an alternative (i.e. replacement) water supply, FirstEnergy must pay the monthly cost of the alternative water supply. The Consent Decree does require that FirstEnergy provide an alternative water supply at no additional cost to the owner. Consent Decree, 10(c). However, the Consent Decree is silent with respect to whether FirstEnergy must pay the usage costs for the alternative water supply. One of the benefits of having clean well water is that there is no monthly usage cost to homeowners. The need to pay the usage costs associated with an alternative water supply because FirstEnergy has contaminated the groundwater with toxic pollution is yet another burden imposed on this community by the Little Blue Run impoundment. The Consent Decree should state that FirstEnergy must pay any usage costs associated with an alternative water supply in perpetuity. See Attachment A, 10(c)(iv). 5. The homeowners identified in paragraph 10(c)(ii) should be given the option to have FirstEnergy restore their water supply or provide an alternative water supply. The homeowners identified in paragraph 10(c)(ii) should be given the same option that affected homeowners are given under paragraph 10(c)(i): restoration of the current water supply or replacement of the water supply with an alternative source. See Consent Decree, 10(c). The value of the affected homeowner s property will decrease when the water beneath the land is no longer potable. Therefore, the Consent Decree should be revised to provide these homeowners with a choice between restoration and replacement. See Attachment A, 10(c)(ii). 4

5 C. Seep monitoring, identification, and management 1. The Consent Decree should state that FirstEnergy must conduct quarterly reconnaissance to identify seeps within one mile of the Little Blue Run impoundment. PADEP has already identified multiple seeps that are located approximately one-half to three-quarters of a mile from the Little Blue Run impoundment. See, e.g., Pa. Dept. of Envtl. Prot., Notice of Seep Contamination at Fineman S-30 Tributary Seep (Aug, 21, 2012). Yet the Consent Decree only requires FirstEnergy to look for seeps within three-quarters of a mile from the Little Blue Run impoundment. Consent Decree, 10(a). However, we are unaware of a comprehensive hydrogeologic analysis of this site; the full extent of the contamination is simply not known at this time. See discussion supra A.2. Therefore, FirstEnergy should be required to conduct quarterly reconnaissance to identify seeps within one mile of the impoundment. See Attachment, 10(a). 2. The Consent Decree should include objective criteria for determining whether the Little Blue Run impoundment has contaminated seeps or groundwater. The determination as to whether seeps and groundwater have been contaminated by the Little Blue Run impoundment triggers important obligations under the Consent Decree. As written, the Consent Decree states that [s]eeps and groundwater shall be considered contaminated by the Impoundment for purposes of this Consent Decree when the Department or FirstEnergy determines that a seep has been impacted by waste material within the Impoundment, based upon parameter values and/or upward trending constituent levels, which indicate that ground water degradation is occurring. Consent Decree, 10(b). Because this determination is somewhat subjective, the Consent Decree should include minimum objective criteria such as exceedances of federal and state water quality and drinking water standards, as well as exceedances of federal Health Advisories. See Attachment A, 10(b). In addition, the Consent Decree should allow PA DEP to be the decision-maker on whether a seep or groundwater has been contaminated by the Little Blue Run impoundment. 3. Newly identified seeps and existing seeps, streams, domestic water supplies and monitoring wells in the Department-approved water monitoring program and the locations listed in Appendix A should be tested for antimony, beryllium, nickel, chromium III, chromium VI, aluminum, cobalt, and vanadium in addition to the pollutants specified in the Consent Decree. Coal combustion waste includes a host of harmful and toxic pollutants, including pollutants not identified as a sampling parameter in paragraph 10(a) of the Consent Decree. Specifically, the Consent Decree does not require FirstEnergy to sample new and existing seeps, streams, domestic water supplies, and wells for antimony, beryllium, nickel, chromium III, 5

6 chromium VI, 1 cobalt, and vanadium. See U.S. Envtl. Prot. Agency, Steam Electric Power Generating Point Source Category: Final Detailed Study Report 2-11 (Oct. 2009), available at alreport.pdf. These pollutants are almost assuredly contained in leachate from the Little Blue Run impoundment. Thus, the Consent Decree should include them as a required sampling parameter. See Attachment A, 10(a). D. Protection of surface water 1. The Consent Decree should require FirstEnergy to take specific actions by a date certain to clean up toxic discharges from permitted outfalls; the deadlines should be enforceable by the Department and subject to penalties. As LBRAG documented in its notice of intent to sue letter, FirstEnergy is violating the Clean Water Act by discharging boron and selenium from permitted outfalls at levels that may cause or contribute to an impact on aquatic life or pose a substantial hazard to... the environment. See Attachment X, at 5 9. Yet neither the complaint filed by PADEP nor the Consent Decree address violations of the Clean Water Act. The Consent Decree simply recites the law, noting that FirstEnergy must comply with its NPDES permit and ensure that the Little Blue Run impoundment does not interfere with water quality standards in receiving waters. Consent Decree, 10(g)(i)(ii). The Complaint and Consent Decree do not identify violations of the Clean Water Act, and the Consent Decree does not identify specific actions FirstEnergy must take to address Clean Water Act violations and clean up its toxic discharges from permitted outfalls. See id. In order to address the full extent of harm caused by the Little Blue Run impoundment, the Consent Decree should require FirstEnergy to take specific actions to clean up toxic discharges from permitted outfalls. Further, the Consent Decree should include interim and final deadlines for completion of these actions, and the deadlines should be enforceable by PADEP and subject to penalties. 2. The Consent Decree should specify that water quality criteria for the following pollutants must be met in addition to the pollutants specified in the Consent Decree: antimony, beryllium, nickel, chromium III, chromium VI, and aluminum. Coal combustion waste includes a host of harmful and toxic pollutants, including pollutants that are not listed in paragraph 10(g)(i) of the Consent Decree. Specifically, the Consent Decree does not require that FirstEnergy comply with water quality standards for antimony, beryllium, nickel, chromium III, and chromium VI. See U.S. Envtl. Prot. Agency, Steam Electric Power Generating Point Source Category: Final Detailed Study Report 2-11 (Oct. 2009), available at alreport.pdf. These pollutants are almost assuredly contained in leaks, seeps, and discharges 1 We are aware that the Consent Decree includes chromium as a sampling parameter. Consent Decree, 10(a). However, FirstEnergy should be required to analyze both forms of chromium due to the serious health and environmental risks associated with chromium VI. See, e.g., 75 FR 35,128, 35,168 (June 21, 2010). 6

7 from the Little Blue Run impoundment, and there are regulatory standards to protect water quality criteria for these pollutants. 25 Pa. Code 93.8c. Thus, the Consent Decree should expressly state that FirstEnergy must comply with the water quality standards for these pollutants. See Attachment A, 10(g)(i). E. Air monitoring 1. The Consent Decree should state that the FirstEnergy air quality monitoring plan must address coal ash pollutants and hydrogen sulfide in addition to particulate matter. FirstEnergy should be required to submit an air quality plan that addresses coal ash pollutants and hydrogen sulfide in addition to particulate matter pollution. The Consent Decree states only that FirstEnergy must submit a monitoring plan for fugitive particulate. Consent Decree, 10(k). Particulate matter pollution can occur at CCW disposal facilities during the handling, transportation, and disposal of coal ash, and can also be caused by traffic and by wind erosion. Inhalation of this particulate matter can cause adverse human health effects... due to inhalation of small-diameter (less than 10 microns) respirable particulate matter that cause[]... a host of cardio and pulmonary mortality and morbidity effects. Hazardous and Solid Waste Management System; Identification and Listing of Special Wastes; Disposal of Coal Combustion Residuals From Electric Utilities; Proposed Rule, 75 Fed. Reg. 35,128, 35,171 (June 21, 2010). In fact, EPA found that there is a strong likelihood that fugitive dust from CCW disposal sites will exceed National Ambient Air Quality Standards for fine particulate matter at offsite locations absent fugitive dust controls. See id.; U.S. Envtl. Prot. Agency, Inhalation of Fugitive Dust: A Screening Assessment of the Risks Posed by Coal Combustion Waste Landfills 11 (May 2010). In addition to particulate matter pollution, coal ash contains many toxic constituents; workers and nearby residents exposed to fugitive dust emissions are also exposed to toxics like arsenic, chromium, nickel, cadmium, lead, beryllium, mercury, and others. 75 Fed. Reg. at 35,169, 35,171; Velimir B. Vouk & Warren T. Piver, Metallic Elements in Fossil Fuel Combustion Products, 47 Envtl. Health Perspectives 201 (1983). Some of these toxics are known carcinogens (arsenic, chromium, nickel), and others are probable carcinogens (lead, cadmium, beryllium). For example, there are at least three known carcinogens in coal ash, and three probable carcinogens. See U.S. Envtl. Protection Agency, Integrated Risk Information System (IRIS), (last visited Aug. 29, 2012). Each of the toxics in coal ash dust poses an independent health threat, and there is also the possibility of cumulative health impacts from exposure to particulate matter and multiple toxics. Residents near Little Blue Run impoundment have also complained to PADEP of a foul, rotten egg odor and chemical odors coming from the impoundment itself and seeps caused by the site. The West Virginia Department of Environmental Protection (WVDEP) has informally speculated that these odors could be related to hydrogen sulfide emissions, but no monitoring has been conducted by PADEP or WVDEP when the odors were occurring. The odors are so offensive that residents cannot sit on their porches or even leave their windows open due to the offending smells, and residents with respiratory issues fear for their health. For all 7

8 these reasons, FirstEnergy should be required to submit an air quality monitoring plan that addresses coal ash pollutants and hydrogen sulfide in addition to particulate matter pollution. See Attachment A, 10(k). 2. The Consent Decree should state that FirstEnergy must implement the monitoring plan within 30 days of the Department s approval. The Consent Decree does not include the date that FirstEnergy must begin monitoring air quality. See Consent Decree, 10(k). The Consent Decree only provides a deadline for submittal of the monitoring plan and requires submission of quarterly reports. Id. In order to ensure that FirstEnergy timely implements the air quality monitoring plan, the Consent Decree should state that FirstEnergy must commence monitoring air quality no later than thirty days from PADEP s approval of the plan. See Attachment A, 10(k). II. NOTICE AND PUBLIC COMMENT A. The Consent Decree should state that FirstEnergy must submit reports and other information required by the Consent Decree to the Secretary of Greene Township, the Hancock County Commissioners, and LBRAG. Due to the widespread contamination caused by the Little Blue Run impoundment and the significant community interest in the operation and remediation of this site, the Consent Decree should require FirstEnergy to send the reports and other information required by the agreement to the Secretary of Greene Township, the Hancock County Commissioners, and LBRAG on the same schedule the information is due to PADEP. We are aware that the Consent Decree, as written, states that FirstEnergy must submit copies of the reports required under paragraph 10(a), 10(f), and (13) to the Secretary of Greene Township. Consent Decree, 10(j). However, this provision does not require submittals to the Hancock County Commissioners or LBRAG. See id. In addition, this provision does not include other information required by the Consent Decree, including: the closure plan for the impoundment, seep management plans, the fugitive particulate monitoring plan, and quarterly results of particulate matter monitoring. See id. 10(b), -(e), -(h), -(k), 14, 17, 19, 20. The reports and information required under the Consent Decree will be used by PADEP to make decisions about the site that will impact citizens of Greene Township and Hancock County, including LBRAG members. It is critical that these parties have timely access to this information. Thus, FirstEnergy should be required to submit all reports and information required by the Consent Decree to the Secretary of Greene Township, the Hancock County Commissioners, and LBRAG. See Attachment A, 10(j). B. The Consent Decree should state that notice of significant proposals or plans to take remedial action at the Little Blue Run impoundment must be published in the Pennsylvania Bulletin with a public comment period of not less than thirty days. The Consent Decree includes various provisions that require FirstEnergy to submit specific plans to address pollution from the Little Blue Run impoundment. See, e.g., Consent Decree, 10(b), -(h), -(k). As stated in the previous comment, this information will be used to 8

9 make important decisions that will impact the health of nearby residents and the environment. Thus, the public should have an opportunity to review these plans and submit comment to PADEP. The Consent Decree should state that PADEP must publish notice of all plans to address pollution from the impoundment, including all plans and reports required under sections (b), (e), (f), (h), and (k) of paragraph 10. See Attachment A, 10(j). III. STIPULATED PENALTIES 1. The Consent Decree should specify that FirstEnergy shall pay a penalty for any failure to submit semiannual progress reports. The Consent Decree states that FirstEnergy shall submit semiannual progress reports that include all information necessary to determine FirstEnergy s compliance with the terms of th[e] Consent Decree. Consent Decree, 13. However, the paragraph related to stipulated penalties is unclear as to whether failure to submit a progress report is subject to penalties. The Consent Decree states that [i]n any event FirstEnergy fails to comply in a timely manner with any provision of this Consent Decree, FirstEnergy shall be in violation of this Consent Decree and... shall pay a civil penalty in the amount determined under [a]... schedule that only addresses violations of paragraph 10. Id. 16. The Consent Decree should be revised to address stipulated penalties for violations of paragraph 13. IV. ADDITIONAL COMMENTS In addition, LBRAG respectfully submits the following: 1. The Consent Decree should include a section that defines key terms. The Consent Decree should define key terms including, but not limited to, seeps, seep management, water supply, and closure in order to clarify obligations imposed by the Consent Decree. 2. The Consent Decree should make clear that FirstEnergy must evaluate the safety and stability of the saddle dam. A 2010 report prepared for Lockheed Martin raised concerns regarding the saddle dam. FirstEnergy Generation Corporation, Assessment of Dam Safety Coal Combustion Surface Impoundments (Task 3) Final Report (Feb. 23, 2010), available at The Consent Decree should make clear that investigative report must include an evaluation of the safety and stability of the saddle dam. See Attachment A, 10(f)(ix). 3. The Consent Decree should expressly prohibit the placement of any CCW in the permitted area of the existing Little Blue Run impoundment and within seven miles of the existing site. Due to the existing widespread ground and surface water contamination, it would be irresponsible to allow FirstEnergy to continue dumping CCW at this site. 9

10 4. The Consent Decree should require FirstEnergy to pay for an independent technical expert to assist LBRAG in the review of reports and plans to address pollution from the Little Blue Run impoundment. As noted previously, the reports and plans that FirstEnergy must submit pursuant to the Consent Decree will be used by PADEP to make important decisions impacting the health of LBRAG s members. FirstEnergy should cover the cost of an independent expert to assist LBRAG in review of any technical documents. Thank you for considering our comments. We look forward to your response. Respectfully Submitted, Jennifer Peterson, Esq. Richard Webster, Esq. Environmental Integrity Project Public Justice One Thomas Circle, Suite K Street NW, Suite 200 Washington, DC Washington, DC (202) (202) jpeterson@environmentalintegrity.org rwebster@publicjustice.net Counsel for: Little Blue Regional Action Group CC: John H. Herman Assistant Regional Counsel Pennsylvania Department of the Environment 400 Waterfront Drive Pittsburgh, PA joherman@pa.gov 10

11 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA : COMMONWEALTH OF PENNSYLVANIA : DEPARTMENT OF ENVIRONMENTAL : PROTECTION, : : Plaintiff, : : v. : Civil Action No. : FIRSTENERGY GENERATION CORP. : : Defendant. : : CONSENT DECREE A. Plaintiff, the Commonwealth of Pennsylvania, Department of Environmental Protection ( Department ), filed its Complaint against Defendant FirstEnergy Generation Corp. ( FirstEnergy ), owner and operator of the solid waste disposal impoundment known as Little Blue Run (the Impoundment ). The Complaint alleges that some or all of the constituents contained in the waste materials may present a current potential that one or more environmental receptors will be exposed to a risk of harm if remedial action is not taken, and that FirstEnergy has violated provisions of the Pennsylvania Solid Waste Management Act, the Act of July 7, 1980, P.L. 380, as amended, 35 P.S

12 B. Defendant, FirstEnergy, an Ohio corporation, is the owner and operator of the Impoundment, a residual waste disposal facility located in Greene Township, Beaver County, Pennsylvania and Hancock County, West Virginia. C. The parties have agreed that the settlement of this matter without further litigation is in the public interest and will serve the purpose of judicial economy. NOW, THEREFORE, upon the consent and agreement of the parties to this Consent Decree by their authorized officials, it is HEREBY ORDERED, ADJUDGED, AND DECREED as follows: I. GENERAL PROVISIONS 1. Jurisdiction and Venue. This Court has jurisdiction over the subject matter of this action and the parties pursuant to 28 U.S.C and 42 U.S.C. 6972(a)(1)(B). For the purposes of this Consent Decree and the underlying complaint, FirstEnergy waives all objections and defenses that it may have to jurisdiction of this Court or to venue in this District. FirstEnergy does not challenge the terms of this Consent Decree or this Court s jurisdiction to enter and enforce this Consent Decree. 2. Retention of Jurisdiction. Jurisdiction is retained by this Court for the purposes of issuing such further orders and directions as may be necessary and appropriate for the implementation or modification of this Consent Decree, and for enforcing compliance with the provisions of this Consent Decree. 3. Parties Bound. This Consent Decree shall be binding upon the Department, FirstEnergy, and FirstEnergy s officers, agents, servants, employees, successors and assigns. 4. Waiver of Certain Defenses. In any subsequent administrative or judicial proceeding initiated by the Department for injunctive relief, penalties, or other appropriate relief

13 relating to the Impoundment, FirstEnergy shall not assert, and may not maintain, any defense or claim based upon the principles of waiver, res judicata, collateral estoppel, issue preclusion, claim-splitting, or other defenses based upon any contention that the claims raised by the Department in the subsequent proceeding were or should have been brought in the instant case. 5. Authority to Sign Consent Decree. Each undersigned representative certifies that he or she is fully authorized to enter into the terms and conditions of this Consent Decree and to execute and legally bind that entity to this document. 6. Notification. Correspondence with Department. All correspondence with the Department concerning this Consent Decree shall be addressed to: and Michael G. Forbeck Environm ental Program Manager, Waste Management Program Department of Environmental Protection Southwest Regional Office 400 Waterfront Drive Pittsbu rgh, PA (412) Fax: (412) Compliance Specialist Clean Water Program Department of Environmental Protection Southwest Regional Office 400 Waterfront Drive Pittsburgh, PA (412) Fax: (412) Correspondence with FirstEnergy. All correspondence with FirstEnergy concerning this Consent Decree shall be addressed to: Vice Raymond L. Evans President, Environmental

14 FirstEnergy Corp. Akron, OH (330) Fax: (330) FirstEnergy shall notify the Department whenever there is a change in the contact person s name, title, or address. Service of any notice or any legal process for any purpose under this Consent Decree, including its enforcement, may be made by mailing a copy by first class mail to the above address. 7. Entire Agreement. This Consent Decree shall constitute the entire integrated agreement of the parties. No prior or contemporaneous communications or prior drafts shall be relevant or admissible for purposes of determining the meaning or extent of any provisions herein in any litigation or any other proceeding. fees. 8. Costs of Suit. Each party to this action shall bear its own costs and attorneys 9. Public Notice. Prior to final approval and entry of this Consent Decree, notice will be provided to the public, and the public shall have at least 30 days in which to make any comments. The Department may withhold or withdraw its consent to this Consent Decree based on such comments. II. COMPLIANCE REQUIREMENTS 10. FirstEnergy shall effectively address the potential for constituents contained in the waste materials within the Impoundment to present a danger to one or more environmental receptors or public health, and take all measures necessary to comply with applicable law, including but not limited to laws protecting ground water and surface waters surrounding the Impoundment. The actions that FirstEnergy shall take include, but are not limited to, the actions set forth below:

15 a. Seep monitoring and identification: Conduct quarterly reconnaissance within three-quarters one (3/4) of a mile in Pennsylvania and West Virginia surrounding the ultimate waste disposal limits of the Impoundment, unless otherwise agreed by the Department, to locate any and all seeps or springs ( seeps ) which have developed as of or prior to such reconnaissance, using best efforts to obtain access to properties not owned or controlled by FirstEnergy. FirstEnergy shall notify the Department in writing of the location of newly identified seeps within seven (7) days of discovering a seep. Newly identified seeps shall be sampled within thirty (30) days of discovery for flow quantity and the following constituents: ammonia-nitrogen, bicarbonate, calcium, chloride, fluoride, chemical oxygen demand, nitratenitrogen, ph, specific conductance, sulfate, total alkalinity, total dissolved solids, total organic carbon, turbidity, iron, manganese, magnesium, potassium, sodium; total and dissolved concentrations of barium, boron, cadmium, chromium III, chromium VI, copper, lead, mercury, selenium, silver, zinc, arsenic, molybdenum, thallium, and cyanide, antimony, beryllium, nickel, aluminum, cobalt, and vanadium; unless the Department authorizes a modification to this list of parameters in writing upon a showing of good cause. FirstEnergy shall also resample all seeps, streams, domestic water supplies and monitoring wells referenced in either the Department-approved water monitoring program or the locations listed on Appendix A hereto, on a calendar quarterly basis for these constituents, to determine whether any previously identified uncontaminated seeps, streams, water supplies or monitoring wells have become contaminated by the Impoundment, and to measure flow quantity for seeps. The analytical results of all such sampling shall be submitted to the Department within sixty (60) days of sampling. FirstEnergy shall prepare and submit to the Department a quarterly report identifying any and all seeps by longitude/latitude and a map, and include current and historical sampling data and trend analyses for each seep, stream, water supply and monitoring well. Such

16 reports shall be submitted in paper and electronic format no later than the last day of April, July, October and January of each year. b. Seep management: Seeps and groundwater shall be considered contaminated by the Impoundment for purposes of this Consent Decree when the Department or FirstEnergy determines that a seep has been impacted by waste material within the Impoundment, based upon (i) parameter values and/or upward trending constituent levels, which indicate that ground water degradation is occurring or (ii) exceedances of federal or state water quality standards, federal or state primary or secondary drinking water standards, and federal Health Advisories. FirstEnergy shall, within thirty (30) days of receiving notice from the Department, or FirstEnergy s own determination (whichever occurs earlier), that a seep is or has become contaminated by the Impoundment, submit a written plan to the Department describing the means by which FirstEnergy will manage such seep. All seeps contaminated by the Impoundment must be managed by FirstEnergy by one of the following means. i. Within sixty (60) days of receipt of such notice from the Department, submit a full and complete application for authorization to discharge to a surface water pursuant to an NPDES permit issued by the appropriate governmental authority, or ii. Within sixty (60) days of receipt of such written notice from the Department (or such other time period as approved in writing by the Department), submit for Department approval a plan and implementation schedule (providing that the plan will be implemented no later than ninety (90) days following Department approval unless another time frame is approved by the Department, or FirstEnergy is unable to acquire necessary property rights despite its best efforts to do so, in which case FirstEnergy shall propose in writing within such time

17 period an alternative plan to comply with Paragraph 10(b)), to collect and convey the seep back into the Impoundment, or iii. As otherwise agreed to in writing by the Department and FirstEnergy. c. Drinking water protection: i. FirstEnergy shall monitor drinking water wells as directed by the Department. For any and all drinking water wells within one-half mile of the ultimate waste disposal limits of the Impoundment, FirstEnergy shall, upon receipt of written direction from the Department, offer the owner, and if accepted, restore the affected water supply at no additional cost to the owner or replace the affected water supply with an alternate source that is of like quantity and quality to the original supply at no additional cost to the owner, and otherwise comply with the requirements of 25 Pa. Code In addition, if monitoring shows impoundment-related pollution that exceeds primary or secondary drinking water standards within 0.5 miles upgradient of water extraction wells that are currently in use, FirstEnergy shall, upon receipt of written direction from the Department, offer the owners of the downgradient wells the option of restoration of the affected water supply or an alternative source that is of like quantity and quality to the original supply at no additional cost to the owner. The Department expressly reserves its authority to require additional measures to protect drinking water sources pursuant to its statutes, regulations, permit and order authority. ii. No later than two years following entry of this Consent Decree, or earlier if required pursuant to Subparagraph (i), above, FirstEnergy shall offer, and if accepted, restore the affected water supply at no additional cost to the owner or provide at no additional cost to the residence, an alternate source of drinking water of like quantity and quality to the original supply, to the following residences: 105, 122,

18 223, 240, 242, 248, 249, 256, 261, 263, 264, 268, 276, 282, 292, and 292 Cullen Drive, Greene Township, Beaver County, Pennsylvania; 490 Red Dog Road, Greene Township, Beaver County, Pennsylvania; 2402 Pyramus Road, Chester, West Virginia; 61 Burgundy Lane, Chester, West Virginia; 149 Marks Run Road, Chester, West Virginia; and 2310 Pyramus Road, Chester, West Virginia. iii. FirstEnergy must provide an interim, alternative water supply during the restoration or replacement period for the owners of drinking water wells identified in section i and ii within sixty days if sampling results indicate exceedances of primary or secondary drinking water standards. iv. An alternate source of water offered pursuant to this section must include water for cooking, bathing, and gardening in addition to drinking. FirstEnergy shall pay for usage costs associated with the alternative water supply in perpetuity. d. Lawrenceville seep collection repair activities: FirstEnergy shall continue to implement the measures approved by the Department on May 10, 2012, to collect previously identified contaminated seeps in Lawrenceville, West Virginia. e. Lawrenceville seep collection improvement activities: FirstEnergy shall, no later than August 1, 2012, submit to the Department, with a copy submitted to the West Virginia Department of Environmental Protection, plans and a schedule to address any further modifications or additions to the collection facilities in Lawrenceville, West Virginia necessary to abate seeps contaminated by the Impoundment that flow into any surface stream. FirstEnergy shall implement such plans in accordance with the plans and schedule, as approved or modified by the Department. f. Investigation of measures to reduce or prevent ground water impact: FirstEnergy shall undertake and complete an investigation and economic/technical feasibility

19 assessment of the matters and issues listed in the subparagraphs below. No later than February 1, 2013, FirstEnergy shall submit to the Department a report, signed and sealed by a Professional Engineer, who is licensed in Pennsylvania. The report shall include, without limitation, all data and analysis, and the conclusions derived therefrom, regarding the following. i. A detailed evaluation of: current solidification characteristics of the waste material based upon core drillings at numerous representative lateral and depth locations in the impoundment and other available testing methodologies; all methods and options available to enhance or expedite dewatering and/or solidification of the waste material, including analyses of the projected rates of dewatering/stabilization, feasibility of implementation, and resulting waste-to-groundwater impacts for each such method and option; and the influence of current and future infiltration of precipitation and ground water into the waste material on future dewatering, stabilization, and waste-togroundwater impacts. ii. Infiltration rates of precipitation into waste that would occur at and after closure, based upon varying gradients, direct seeding, and/or application of natural and synthetic cover/capping materials. iii. Feasibility of the selective application of slurry walls and associated pumping facilities installed in peripheral locations to the Impoundment to limit or redirect groundwater infiltration or contamination. iv. Feasibility of the selective application of pumping wells installed within and/or in peripheral locations to the Impoundment to limit or re-direct groundwater infiltration or contamination. v. Water table levels within the waste material in the Impoundment at representative locations, and the feasibility of the following measures to reduce such levels: effects of an increase in positive slopes of waste, cover/capping to

20 prevent/minimize infiltration of precipitation, use of synthetic and natural cover/capping materials to prevent/minimize infiltration of precipitation, and the application of pumping wells and/or other liquid removal technology. Such information shall also be used to evaluate the issues set forth in Subparagraphs (i) through (ix), herein. vi. Feasibility of minimizing the size of the permanent pool in the Impoundment, and the installation and permanent maintenance of a natural or synthetic liner between the uncontaminated stormwater and the waste material. vii. Explanation of the presence of arsenic in seeps and groundwater originating from the Impoundment, and the feasibility of minimizing this parameter, including, but not limited to, an investigation of any change in waste chemistry or characteristics, or change in water chemistry and ph within the Impoundment during the last seven (7) years. viii. Evaluation of flow rates and concentration of selenium and boron discharges from the Impoundment at NPDES permitted outfalls. ix. Evaluation of the current and future safety and stability of the dam, including the saddle dam, in light of all methods and options for waste stabilization, dewatering, and closure activities. x. Complete hydrogeological analysis, including, but not limited to, full site characterization, hydrologic mapping, and groundwater modeling to determine groundwater flow rates and plume migration. xi. A recommended remedial option with proposed compliance points in groundwater and surface water, along with justification for the selected option. At a minimum, the remedial option must minimize future generation of CCW leachate and capture; contain leachate plumes to prevent additional migration of pollution from the

21 impoundment; and demonstrate compliance with federal and state water quality standards at compliance points within a reasonable period of time. The recommended remedial option shall include interim and final deadlines for implementation and completion. g. Protection of groundwater and surface waters. i. FirstEnergy shall take all measures necessary to ensure that the existing and designated uses of surface waters, including but not limited to Little Blue Run, receiving any contaminants from the Impoundment, are protected, and that water quality criteria in such surface waters achieve applicable regulatory standards for all parameters, including but not limited to ammonia-nitrogen, bicarbonate, calcium, chloride, fluoride, chemical oxygen demand, nitrate- nitrogen, ph, specific conductance, sulfate, total alkalinity, total dissolved solids, total organic carbon, turbidity, iron, manganese, magnesium, potassium, sodium; total and dissolved concentrations of barium, boron, cadmium, chromium III, chromium IV, copper, lead, mercury, selenium, silver, zinc, arsenic, molybdenum, thallium, and cyanide, antimony, beryllium, nickel, and aluminum. Notwithstanding the foregoing, seeps contaminated by the Impoundment shall be managed pursuant to Paragraph 10(b), above. ii. FirstEnergy shall take all measures necessary to ensure that NPDES permit limitations for point source discharges from or associated with the Impoundment are not exceeded. iii. FirstEnergy shall take all measures necessary to ensure that groundwater impacted by the Impoundment does not exceed, and if necessary, is abated to applicable regulatory standards, including those set forth in Section of the Department s Residual Waste regulations, 25 Pa. Code h. Closure plan for the Impoundment. No later than March 31, 2013,

22 FirstEnergy shall submit to the Department an application for a major modification to the Permit for the Impoundment proposing a closure plan for the Impoundment in accordance with the Department s Residual Waste regulations and in compliance with the requirements of this Consent Decree. The proposed closure plan shall fully address the results of FirstEnergy s investigation and feasibility assessment required by Paragraph 10(f), above. i. Department approved plans. Any plan and schedule submitted by FirstEnergy as approved by the Department in accordance with any requirement of this Consent Decree shall become part of this Consent Decree. A violation of any such plan and schedule shall constitute a violation of this Consent Decree. j. Information to and involvement by Community. FirstEnergy shall provide a copy of the reports required under Paragraphs 10(a), (b), (e), (h), (k), and 13, 14, 17, 19, and 20 and the investigative/assessment results required under Paragraph 10(f), for review by community members by providing such materials concurrently and without charge to the Secretary of Greene Township, Hancock County Commissioners, and Little Blue Regional Action Group. FirstEnergy shall also make appropriate representatives available to attend and participate in public meetings as requested by the Department. The Department shall publish notice and an opportunity for public comment for a period of no less than thirty days for reports and plans submitted to the Department pursuant to paragraph 10(b), (e), (f), (h), and (k). k. FirstEnergy shall conduct monitoring sufficient to ensure that operation of the Impoundment will not cause or contribute to an exceedance of Ambient Air Quality Standards, in accordance with Section of the Department s regulations, 25 Pa. Code No later than ninety (90) days following entry of this Consent Decree, FirstEnergy shall submit for approval by the Department a plan for the establishment of a fugitive particulate matter, coal ash metals, and hydrogen sulfide monitoring system for the Impoundment. The plan shall propose monitoring site locations of sufficient number and spatial distribution to accurately determine the rates at which particulate emissions from the Impoundment are

23 deposited in peripheral areas, and that monitors shall be constructed in conformance with the standards of ASTM D The location of the monitoring sites shall be initially based on a wind rose of the area derived from climatological data recorded at the nearest National Weather Service weather station. The plan shall further propose specifications for, and a location for the installation of, a meteorological monitoring station near the Impoundment that conforms to the provisions of Meteorological Monitoring Guidance for Regulatory Modeling Applications, EPA-454/R , US Environmental Protection Agency, Office of Air Quality Planning and Standards, Research Triangle Park, NC, February Within thirty days of Department approval of the plan, FirstEnergy shall begin air quality monitoring according to the approved plan. FirstEnergy shall prepare and submit to the Department a quarterly report of all particulate monitoring results, no later than the last day of April, July, October and January of each year. Upon completion of one calendar year of meteorological monitoring data collection, FirstEnergy shall submit to the Department a re-evaluation of the fugitive particulate monitoring system based on the site-specific data. l. FirstEnergy shall, no later than December 31, 2016, cease disposing in the Impoundment the waste materials currently authorized under the Permit: FOG plant low solids waters, stabilized CCB sludge (includes Flue Gas Desulferization (FGD) scrubber sludge mixed with additional lime, FOG Plant high solids water, fly ash, bottom ash, waste streams from the Low and High Dissolved Solids Ponds) and other wastes or waste waters from the Low Solids Line. 11. Reservation of Rights. The Department reserves the right to require additional measures to achieve compliance with applicable Law. 12. Compliance with Law. This Consent Decree in no way affects or relieves FirstEnergy of any responsibility to comply with any federal, state or local law or regulation, or applicable permit. FirstEnergy is responsible for achieving and maintaining compliance with all applicable federal and state laws, regulations and permits, and compliance with this Consent