ALABAMA DEPARTMENT OF

ENVIRONMENTAL MANAGEMENT

IN THE MATTER OF:

Birmingham Coal & Coke Co., Inc.

Grace Chapel Mine

NPDES Permit No. ALO063525
Walker County, AL

Ninna V Mine
NPDES Permit No. ALO060682
Walker County, AL

Old Union Mine

NPDES Permit No. AL0077771
Winston County, AL

Crossroads Mine
NPDES Permit No. AL0073661
Marion and Winston Counties, AL

Gooden Creek Mine

NPDES Permit No. AL0077542
Marion County, AL

Bear Creek Mine

NPDES Permit No. AL0074373
Franklin County, AL ORDER NO. XX-XXX-WP

PREAMBLE

This Special Order by Consent is made and entered into by the Alabama Department of

Environmental Management (hereinafter "the Department") and Birmingham Coal & Coke Co.,

Inc. (hereinafter "the Permittee") pursuant to the provisions of the Alabama Environmental

Management Act, Ala. Code §§ 22-22A-l through 22-22A-16 (2006 Rplc. Vol.), the Alabama

Water Pollution Control Act, Ala. Code §§ 22-22-1 through 22-22-14 (2006 Rplc. Vol.), and the

regulations promulgated pursuant thereto, and § 402 of the Federal Water Pollution Control

Act, 33 U.S.C. § 1342.

STIPULA TIONS

Footnotes
* See the "Findings" of the order a detailed description of each violation and the penalty factors.
 1. The Birmingham Coal & Coke Co., Inc. (hereinafter the "Permittee") operates the

following Coal Mines (hereinafter "Mines"): Grace Chapel Mine located in Walker County,

Alabama with NPDES Permit No. AL0063525; Ninna V Mine located in Walker County,

Alabama with NPDES Permit No. AL0060682; Old Union Mine located in Winston County,

Alabama with NPDES Permit No. AL0077771; Crossroads Mine located in Marion and Winston

Counties with NPDES Permit No. AL0073661, Alabama; Gooden Creek Mine located in Marion

County, Alabama with NPDES Permit No. AL0077542 and Bear Creek Mine located in Franklin

County, Alabama with NPDES Permit No. AL0074373.

2. The Department is a duly constituted department of the State of Alabama

pursuant to Ala. Code §§ 22-22A-1 through 22-22A-16 (2006 Rplc. Vol.).

3. Pursuant to Ala. Code § 22-22A-4(n) (2006 Rplc. Vol.), the Department is the

state agency responsible for the promulgation and enforcement of water pollution control

regulations in accordance with the Federal Water Pollution Control Act, 33 U.S.C. §§ 1251 to

1387. In addition, the Department is authorized to administer and enforce the provisions of

the Alabama Water Pollution Control Act, Ala. Code §§ 22-22-1 through 22-22-14 (2006 Rplc.

Vol.).

4. The Department issued National Pollutant Discharge Elimination System

(hereinafter "NPDES") Permit No. AL0063525 to the Permittee on June 30, 2004, effective July

1, 2004, establishing limits on the discharge of pollutants from Grace Chapel Mine. NPDES

Permit No. AL0063525 expired on June 30, 2009. Grace Chapel Mine currently has two active

outfalls which discharge pollutants into Rocky Branch and Sparks Branch both of which are

waters of the State. The Department issued NPDES Permit No. AL0060682 to the Permittee on

March 31, 2005, effective April 1, 2005, establishing limits on the discharge of pollutants from

Ninna V Mine. NPDES Permit No. AL0060682 expired on March 31, 2010. Ninna V Mine

currently has ten active outfalls which discharge pollutants into Dry Creek, an unnamed

tributary to Dry Creek and to unnamed trbutaries to Little Blackwater Creek all of which are

waters of the State. The Department issued NPDES Permit No. AL0077771 to the Permittee on
January 31, 2006, effective February 1, 2006, establishing limits on the discharge of pollutants

from Old Union Mine. NPDES Permit No. AL0077771 expires on January 31,2011. Old Union

Mine currently has twelve active outfalls which discharge pollutants into Indian Creek and

unnamed tributaries to Indian Creek all of which are waters of the State. The Department

issued NPDES Permit No. AL0073661 to the Permittee on December 30, 2005, effective

January 1, 2006, establishing limits on the discharge of pollutants from Crossroads Mine.

NPDES Permit No. AL0073661 expires on December 30, 2010. Crossroads Mine currently has

29 active outfalls which discharge pollutants into Little Creek, unnamed tributary to Little

Creek, West Prong of Blackwater Creek, unnamed tributary to West Prong of Blackwater Creek,

New River, unnamed tributary to New River, Dry Creek and Lincoln Branch, all of which are

waters of the State. The Department issued NPDES Permit No. AL0077542 to the Permittee on

October 31, 2005, effective November 1, 2005, establishing limits on the discharge of

pollutants from Gooden Creek Mine. NPDES Permit No. AL0077542 expires on October 31,

2010 and has been administratively extended. Gooden Creek Mine currently has twelve active

outfalls which discharge pollutants into Gooden Creek, unnamed tributaries to Gooden Creek

and Goodwin Creek all of which are waters of the State. The Department issued NPDES Permit

No. AL0074373 to the Permittee on January 31, 2002, effective February 1, 2002, establishing

limits on the discharge of pollutants from Bear Creek Mine. NPDES Permit No. AL0074373

expired on January 31, 2007 and has been admistratively extended. Bear Creek Mine

currently has nine active outfalls which discharge pollutants into Little Dice Branch and

unnamed tributaries to Little Dice Branch all of which are waters of the State. All of the above

Permits require that the Permittee monitor its discharges and submit periodic Discharge

Monitoring Reports (hereinafter "DMRs") to the Department describing the results of the

monitoring. The Permits also require that the Permittee maintain in good working order all

systems used by the Permittee to achieve compliance with the terms and conditions of the

Permits.

5. The Permittee violated Part II.B.10. of its NPDES Permit for the Grace Chapel

Mine, which requires that if the Permittee intends to continue to discharge beyond the
expiration date of its existing permit, the Permittee must reapply for a reissuance of the permit

at least 180 days prior to its expiration. The permit renewal application was due to the

Department by January 1,2009. To date, the Permittee has not submitted an application for

permit renewal.

6. On October 14, 2009, a Notice of Violation (herenafter "NOV") was issued to the

Permittee for NPDES Permit No. AL0063525, Grace Chapel Mine, for failure to reapply for a

permit renewal at least 180 days prior to the existing permits expiration. The NOV required

that the Permittee submit a complete application for permit renewal within thirty days of

receipt of the NOV. The NOV was received by the Permittee on October 21,2009, and to date,

the Permittee has failed to respond to the NOV.

7. Ala. Code § 22-22-9(e) (2006 Repk. Vol.), requires an operator to respond within

the specified time frame to a notice of violation or non-compliance by the Department. The

Permittee violated the statute cited above by failing to respond to the NOV.

8. The Department received DMRs from the Permittee for NPDES Permit No.

AL0063525, Grace Chapel Mine, on November 2, 2009 for the Third Quarter of 2009, and on

January 28, 2010, for the Fourth Quarter of 2009. A total of twenty-four discharge events

were reported to the Department for the third and fourth quarters of 2009 collectively.

9. NPDES Permit No. AL0063525 expired on June 30, 2009, therefore, the Permittee

violated ADEM Admin. Code r. 335-6-6-.03(1), by discharging pollutants to a water of the State

without a valid permit from the Grace Chapel Mine.

10. The Permittee violated Part 11.8.10. of its NPDES Permit No. AL0060682, for the

Ninna V Mine, which requires that if the Permittee intends to continue to discharge beyond the

expiration date of its existing permit, the Permittee must reapply for a reissuance of the permit

at least 180 days prior to its expiration. The permit renewal application was due to the

Department by October 2, 2009. To date, the Permittee has not submitted an application for

permit renewal.

11. The Permittee violated Part 11.8.10. of its NPDES Permit for the Old Union Mine,

which requires that if the Permittee intends to continue to discharge beyond the expiration
date of its existing permit, the Permittee must reapply for a reissuance of the permit at least

180 days prior to its expiration. The permit renewal application was due to the Department by

August 4,2010. To date, the Permittee has not sUbmitted an application for permit renewal.

12. On November 2, 2009 the Department received DMRs for NPDES Permit No.

AL0077771, Old Union Mine, for the Third Quarter of 2009. The Permittee violated part I.B.8.

of NPDES Permit NO AL0077771 by failing to report appropriate monitoring data for all active

outfalls of the Old Union Mine.

13. On December 11, 2009, the Department inspected the Old Union Mine to

determine compliance with NPDES Permit No. AL0077771. The inspector noted that the Spill

Prevention, Control and Countermeasures Plan (herenafter "SPCC") had not been implemented.

The fuel area had a dirt berm with a dirt bottom and a valveless drainage pipe that led out of

the containment area. The inspector also noted numerous fuel stains on the ground and used

batteries with open cells lying on the ground. The Permittee violated Part II.A.2.c. of NPDES

Permit No. AL0077771, Old Union Mine, that requires Best Management Practices be

implemented onsite to reduce spill prevention.

14. The Permittee violated Part II.B.lO. of its NPDES Permit No. AL0073661, for the

Crossroads Mine, which requires that if the Permittee intends to continue to discharge beyond

the expiration date of its existing permit, the Permittee must reapply for a reissuance of the

permit at least 180 days prior to its expiration. The permit renewal application was due to the

Department by July 3, 2010. To date, the Permittee has not submitted an application for

permit renewal.

15. On December 11, 2009, the Department inspected the Gooden Creek Mine to

determine compliance with NPDES Permit No. AL0077542. The inspector noted that the SPCC

Plan had not been implemented. The fuel area had a dirt berm with a dirt bottom and the fuel

tanks were lying on bare dirt. The inspector also noted fuel was being allowed to spill onto the

ground and old drums and trash were collecting onsite. The Permittee violated Part II.A.2.c. of

NPDES Permit No. AL0077542, Gooden Creek Mine, that requires Best Management Practices

be implemented onsite to reduce spill prevention.

 16. On December 18, 2009, the Department inspected the Bear Creek Mine to

determine compliance with NPDES Permit No. AL0074373. The inspector noted that the SPCC

Plan had not been implemented. Old batteries were in the stockpile are outside containmnent

and there were numerous fuel/oil spills in the stockpile area. The Permittee violated Part

ILA.2.c. of NPDES Permit No. AL0074373, Bear Creek Mine, that requires Best Management

Practices be implemented onsite to reduce spill prevention.

CONTENTIONS

17. Pursuant to Ala. Code § 22-22A-5(18)c (2006 Rplc. Vol.), in determining the

amount of any penalty, the Department must give consideration to the seriousness of the

violation, including any irreparable harm to the environment and any threat to the health or

safety of the public; the standard of care manifested by the Permittee; the economic benefit

that delayed compliance may have conferred upon the Permittee; the nature, extent and degree

of success of the Permittee's efforts to minimize or mitigate the effects of such violation upon

the environment; the Permittee's history of previous violations; and the ability of the Permittee

to pay such penalty. Any civil penalty assessed pursuant to this authority shall not be less

than $100.00 or exceed $25,000.00 for each violation, provided however, that the total penalty

assessed in an order issued by the Department shall not exceed $250,000.00. Each day that

such violation continues shall constitute a separate violation. In arriving at this civil penalty,

the Department has considered the following:

A. SERIOUSNESS OF THE VIOLATION AND BASE PENALTY: The Department noted

forty-two violations of ADEM Admin. Code chap. 335-6 and the AWPCA. The Department

considered the general nature of each violation, the magnitude and duration of each non­

compliant discharge, their effects, if any, on impaired waters, and any available evidence of

irreparable harm to the environment or threat to the public.

B. THE STANDARD OF CARE: The Department noted a number of violations, such as

the timely submittal of the permit renewal application, were non-technical requirements and

easily avoidable. The Department also noted that the Permittee did not respond to the

Department's October 14, 2009 NOV.

 C. ECONOMIC BENEFIT WHICH DELAYED COMPLIANCE MAY HAVE CONFERRED:

The Permittee avoided certain costs associated with proper operation and maintenance of the

mining facilities and the submittal of required permit renewal applications, however, the

Department has no evidence of any other avoided costs not otherwise addressed by compliance

with this order. The Department believes the civil penalty sought in this matter is sufficient to

address any economic benefit associated with these costs.

D. EFFORTS TO MINIMIZE OR MITIGATE THE EFFECTS OF THE VIOLATION UPON

THE ENVIRONMENT: The Department is unaware of any efforts by the Permittee to minimize

or mitigate the effects of the violations upon the environment.

E. HISTORY OF PREVIOUS VIOLATIONS: The Department is unaware of any previous

history of violations in addition to those noted above.

F. THE ABILITY TO PAY: The Department has no knowledge of the Permittee's ability

to pay the civil penalty.

G. The civil penalty is summarized in Attachment 2.

ORDER
THEREFORE, the Permittee, along with the Department, desires to resolve and settle

the compliance issues cited above. The Department has carefully considered the facts

available to it, as well as the need for timely and effective enforcement, and the Department

believes that the following conditions are appropriate to address the violations alleged herein.

Therefore, the Department and the Permittee agree to enter into this ORDER with the following

terms and conditions:

A. The Permittee agrees to pay the Department a civil penalty in the amount of

$20,000.00 to settle the violations alleged herein within forty-five days from the effective date of

this Consent Order. Failure to pay the civil penalty within forty-five days from the effective

date may result in the Department filing a civil action in the Circuit Court of Montgomery

County to recover the civil penalty.

 B. That all penalties due pursuant to this Consent Order shall be made payable to

the Alabama Department of Environmental Management by certified or cashier's check and

shall be remitted to:

Office of General Counsel

Alabama Department of Environmental Management
P.O. Box 301463

Montgomery, Alabama 36130-1463

C. The Permittee shall submit NPDES permit renewal applications for NPDES

Permit No. AL0063525, Grace Chapel Mine, NPDES Permit No. AL0060682, Ninna V Mine,

NPDES Permit No. AL0077771, Old Union Mine and NPDES Permit No. AL0073661,

Crossroads Mine. The Permittee shall also submit a revised/corrected Third Quarter DMR for

NPDES Permit No. AL0077771, Old Union Mine and properly implement the SPCC Plans at the

Old Union Mine, Gooden Creek Mine and Bear Creek Mine and clean and abate the spills that

have already occurred onsite.

D. The Permittee shall submit to the Department updated SPCC Plans for all of

their permitted Mines. The SPCC Plans shall be submitted so that they are received by the

Department not later than ninety days after receipt of this Consent Order. The SPCC Plans

must be prepared by a professional engineer licensed to practice in the State of Alabama. If the

Department determines through its review of the submitted SPCC Plans that the submittals are

not sufficient to accomplish compliance with the NPDES Permits, then the Permittee must

modify the SPCC Plans so that they accomplish compliance. The Permittee shall submit

modifications to the SPCC Plans, if required, so that they are received by the Department no

later than thirty days after receipt of the Department's comments.

E. The Permittee shall comply with all terms, conditions, and limitations and

requirements specified under expired NPDES AL0063525, Grace Chapel Mine until NPDES

AL0063525 is reissued.

F. The Permittee shall comply with all terms, conditions, and limitations and

requirements specified under expired NPDES Permit AL0060682, Ninna V Mine until NPDES

Permit AL0060682 is reissued.

 G. The Permittee shall comply with all terms, conditions, and limitations and

requirements specified under NPDES Permit AL007777l, Old Union Mine until NPDES Permit

AL0077771 is reissued.

H. The Permittee shall comply with all terms, conditions, and limitations and

requirements specified under NPDES Permit AL007366l, Crossroads Mine until NPDES Permit

AL0073661 is reissued.

I. That, the Permittee shall submit a certification to the Department, signed by a

professional engineer licensed to practice in the State of Alabama, indicating whether or not

the Permittee is in compliance with all requirements of this Order. The certification should be

submitted so that it is received by the Department not later than 120 days after issuance of

this Order.

J. The parties agree that this Consent Order shall apply to and be binding upon both

parties, their directors, officers, and all persons or entities acting under or for them. Each

signatory to this Consent Order certifies that he or she is fully authorized by the party he or

she represents to enter into the terms and conditions of this Consent Order, to execute the

Consent Order on behalf of the party represented, and to legally bind such party.

K. The parties agree that, subject to the terms of these presents and subject to

provisions otherwise provided by statute, this Consent Order is intended to operate as a full

resolution of the violations, which are cited in this Consent Order.

L. The Permittee agrees that it is not relieved from any liability if it fails to comply

with any provision of this Consent Order.

M. For purposes of this Consent Order only, the Permittee agrees that the

Department may properly bring an action to compel compliance with the terms and conditions

contained herein in the Circuit Court of Montgomery County. The Permittee also agrees that in

any action brought by the Department to compel compliance with the terms of this Agreement,

the Permittee shall be limited to the defenses of Force Majeure, compliance with this Agreement

and physical impossibility. A Force Majeure is defined as any event arising from causes that

are not foreseeable and that are beyond the reasonable control of the Permittee, including its
contractors and consultants, that could not be overcome by due diligence (i.e., causes that

could have been overcome or avoided by the exercise of due diligence will not be considered to

have been beyond the reasonable control of the Permittee) and which delays or prevents

performance by a date required by the Consent Order. Events such as unanticipated or

increased costs of performance, changed economic circumstances, normal precipitation events,

or failure to obtain federal, state, or local permits shall not constitute Force Majeure.. Any

request for a modification of a deadline must be accompanied by the reasons (including

documentation) for each extension and the proposed extension time. This information shall be

submitted to the Department a minimum of ten working days prior to the original anticipated

completion date. If the Department, after review of the extension request, finds the work was

delayed because of conditions beyond the control and without the fault of the Permittee, the

Department may extend the time as justified by the circumstances. The Department may also

grant any other additional time extension as justified by the circumstances, but it is not

obligated to do so.

N. The Department and the Permittee agree that the sole purpose of this Consent

Order is to resolve and dispose of all allegations and contentions stated herein concerning the

factual circumstances referenced herein. Should additional facts and circumstances be

discovered in the future concerning the facility that would constitute possible violations not

addressed in this Consent Order, then such future violations may be addressed by other

Orders as may be issued by the Director, by litigation initiated by the Department, or by such

other enforcement action as may be appropriate, and the Permittee shall not object to such

future orders, litigation or enforcement action based on the issuance of this Consent Order if

future orders, litigation or other enforcement action address new matters not raised in this

Consent Order.

O. The Department and the Permittee agree that this Consent Order shall be

considered final and effective immediately upon signature of all parties. This Consent Order

shall not be appealable, and the Permittee does hereby waive any hearing on the terms and

conditions of same.
 P. The Department and the Permittee agree that this Consent Order shall not affect

the Permittee's obligation to comply with any Federal, State, or local laws or regulations.

Q. The Department and the Permittee agree that final approval and entry into this

Consent Order is subject to the requirement that the Department provide notice of proposed

Orders to the public, and that the public have at least thirty days within which to comment on

the Consent Order.

R. The Department and the Permittee agree that, should any provision of this

Consent Order be declared by a court of competent jurisdiction or by the Environmental

Management Commission to be inconsistent with Federal or State law and therefore

unenforceable, the remaining provisions hereof shall remain in full force and effect.

S. The Department and the Permittee agree that any modifications of this Consent

Order must be agreed to in writing signed by both parties.

T. The Department and the Permittee agree that, except as otherwise set forth

herein, this Consent Order is not and shall not be interpreted to be a permit or modification of

an existing permit under Federal, State or local law, and shall not be construed to waive or

relieve the Permittee of its obligations to comply in the future with any permit.

Executed in duplicate, with each part being an original.

BIRMINGHAM COAL & COKE CO., INC. ALABAMA DEPARTMENT OF

ENVIRONMENTAL MANAGEMENT

By: By:

Its: Its:

Date: Date:
 Attachment 1

Penalty Calculation Worksheet

BIRMINGHAM COAL AND COKE, INC.

Seriousness of History of
Violation Number of 'V· I t· & B Standard of Previous
I V· Ia . I 10 a Ion ase Ca * !
10 bons, P It.-* re
, ena ~.Y i
, Violations*

Failure to submit a timely application for

4 $12,000
permit renewal

Failure to respond to an NOV issued by the i

1 $3,000
Department
----j - -- - -, - - - - - _ .. ­

Reporting violations associated with Old I

12 I $1,200
Union Mine !

Discharging polluants to a water of the

----+­
State without a permit from Grace Chapel 24 $2,400
Mine
-----f
Failure to implement SPCC Plan 3 $3,000
I
------
I - I
I
--- _ . ---­

-+­ I

Totals: I 44 I $21,600 $7,500 $0

Economic Benefit*: $0
- - - --

Mitigating Factors: $0
------- -,

Ability to Pay*: $0
--

Other Factors*: ($9,10 0 1

Final Penalty: $20,000.00

• Refer to the "Findings" of the Order for a description of each penalty factor