IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
________________________________________________
LOWER SUSQUEHANNA RIVERKEEPER
ASSOCIATION, WATERKEEPER ALLIANCE, and
PENNENVIRONMENT
Plaintiffs
v.
TALEN ENERGY CORPORATION and
BRUNNER ISLAND, LLC.
Defendants

COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF
ENVIRONMENTAL PROTECTION
Plaintiff
v.
TALEN ENERGY CORPORATION and
BRUNNER ISLAND, LLC.
Defendants

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

CONSENT DECREE

Civil Action No. __________

Civil Action No. ________

 TABLE OF CONTENTS
Page
I.

PARTIES ........................................................................................................................ 1

II.

SITE BACKGROUND ................................................................................................... 2

III.

PURPOSE ....................................................................................................................... 2

IV.

JURISDICTION AND VENUE ..................................................................................... 4

V.

APPLICABILITY ........................................................................................................... 4

VI.

GENERAL PROVISIONS ............................................................................................. 5

VII.

DEFINITIONS................................................................................................................ 7

VIII.

COMPLIANCE REQUIREMENTS ............................................................................... 8

IX.

MODIFICATIONS TO BRUNNER’S NPDES PERMIT, ADDITIONAL
OPERATING CONDITIONS AND MEASURES TO ADDRESS NPDES
EFFLUENT VIOLATIONS ......................................................................................... 19

X.

COMMUNICATIONS, REPORTING, NOTIFICATIONS ........................................ 23

XI.

ADDITIONAL INFORMATION AVAILABLE TO THE PUBLIC .......................... 24

XII.

NOTICE TO THE PUBLIC.......................................................................................... 24

XIII.

CIVIL PENALTY ......................................................................................................... 25

XIV.

STIPULATED PENALTIES ........................................................................................ 27

XV.

PLAN SUBMISSIONS................................................................................................. 29

XVI.

FORCE MAJEURE ...................................................................................................... 30

XVII.

DISPUTE RESOLUTION ............................................................................................ 32

XVIII.

RIGHT OF ENTRY ...................................................................................................... 34

XIX.

COMPLETION OF WORK AND TERMINATION ................................................... 35

XX.

COSTS .......................................................................................................................... 37

XXI.

NOTICES ...................................................................................................................... 37

XXII.

TRANSFER OF SITE................................................................................................... 39

XXIII.

EFFECTIVE DATE ...................................................................................................... 40

XXIV.

SIGNATORIES ............................................................................................................ 40

XXV.

SEVERABILITY, INTEGRATION, EXECUTION, AND MODIFICATIONS......... 40

XXVI.

FINAL JUDGMENT AND WITHDRAWAL OF APPEAL ....................................... 41

-i-

 FINAL
I.
A.

PARTIES

Plaintiffs, the Lower Susquehanna Riverkeeper Association, the Waterkeeper Alliance, and
PennEnvironment

(collectively

“Citizens”)

are

not-for-profit,

non-governmental

organizations that filed a Notice of Intent to Sue and a Complaint in the United States
District Court for the Middle District of Pennsylvania against Talen Energy Corporation
and Brunner Island LLC.
B.

Plaintiff, the Commonwealth of Pennsylvania, Department of Environmental Protection
(“Department”), filed a Complaint against Talen Energy Corporation and Brunner Island
LLC in the United States District Court for the Middle District of Pennsylvania. The
Department is the agency with the duty and authority to administer and enforce the
Pennsylvania Solid Waste Management Act, the Act of July 7, 1980, P.L. 380, as amended,
35 P.S. §§ 6018.101-6018.1003 (“Solid Waste Management Act”); the Pennsylvania Clean
Streams Law, the Act of June 22, 1937, P.L. 1987, as amended, 35 P.S. §§ 691.1 –
691.1001 (“Clean Streams Law”); and the rules and regulations promulgated under the
Solid Waste Management Act and the Clean Streams Law, including the Residual Waste
Regulations at 25 Pa. Code Chapters 287-289. The Department has been delegated
authority to administer the National Pollutant Discharge Elimination System ("NPDES")
permit program under the Federal Water Pollution Control Act, 33 U.S.C § 1342 (“Clean
Water Act”). All statutes, rules and regulations cited in this paragraph, whether in effect
on the date of entry of this Consent Decree or thereafter, shall be collectively referred to as
“Applicable Environmental Laws.”

C.

Defendants Talen Energy Corporation (“Talen”) and Brunner Island, LLC (“Brunner”)
(collectively “Defendants”), are a Delaware corporation and a Delaware limited liability
corporation, respectively, both registered to conduct business in the Commonwealth of
1

 FINAL
Pennsylvania. Brunner is a subsidiary of Talen. Talen maintains a business address of 600
Hamilton Street, Suite 600, Allentown, Pennsylvania 18101. Brunner maintains a business
address of 600 Hamilton Street, Suite 600, Allentown, Pennsylvania 18101.
D.

Brunner owns and operates an electric generation facility, Brunner Island Steam Electric
Station (“BISES” or “Brunner facility”) in East Manchester Township, York County.
BISES is located on the west bank of the Susquehanna River on approximately 766 acres
of land (“BISES Site”). It has three electric generation units that combust coal, natural gas
or a combination of the two.
II.

E.

SITE BACKGROUND

Brunner’s operations generate residual wastes, including fly ash and bottom ash. Brunner
disposed of the residual waste in seven unlined residual waste impoundments, known as
Ash Basins 1, 2, 3, 4, 5, 6, and 7 and a lined landfill known as Disposal Area 8. Brunner
continues to dispose of waste in Disposal Area 8; disposal in Ash Basin 6 ceased on June
1, 2019. These impoundment basins and landfill cover an area approximately 367 acres in
size.

F.

Brunner owns and operates a number of state-permitted residual waste disposal units at the
BISES Site, including the impoundments and landfill at issue in the Complaints. The
residual waste disposal impoundments and landfill at the BISES Site contain “coal
combustion residuals” (“CCR”) as that term is defined in 40 C.F.R. § 257.53 or “coal ash”
as that term is defined in 25 Pa. Code § 287.1. The BISES Site is bordered on the east by
the Susquehanna River and on the west by Hartman Run, also known as “Black Gut Creek,”
and by Conewago Creek, both tributaries of the Susquehanna River.
III.

G.

PURPOSE

Citizens filed a Notice of Intent to Sue Talen and Brunner on August 29, 2018 and a
2

 FINAL
Complaint against Defendants on July 31, 2019. Citizens’ Complaint alleges violations of
the Clean Water Act, 33 U.S.C. § 1251 et seq. and Pennsylvania’s Clean Streams Law, as
amended, 35 P.S. § 691.1 et seq., associated with management of coal ash disposal units at
the BISES Site as well as violations of Brunner’s National Pollutant Discharge Elimination
System Permit No. PA0008281 (“NPDES Permit”). On July 31, 2019, the Department
filed a Complaint against Defendants. The Department’s Complaint alleges violations of
Applicable Environmental Laws, including the Clean Water Act, 33 U.S.C. § 1251 et seq.,
Pennsylvania’s Clean Streams Law, as amended, 35 P.S. § 691.1 et seq., and the Solid
Waste Management Act, as amended, 35 P.S. § 6018.101 et seq. A copy of the Notice of
Intent, the Citizens’ Complaint, and the Department’s Complaint are attached as Exhibits
A, B and C, respectively.
H.

On September 7, 2018, Citizens also timely filed a Notice of Appeal with the Pennsylvania
Environmental Hearing Board of the Department’s July 27, 2018 reissuance of Brunner’s
NPDES Permit, which became effective on August 1, 2018. Citizens filed an amendment
to their Notice of Appeal on September 27, 2018. The September 7, 2018 Notice of Appeal
and the September 27, 2018 amendment will be collectively referred to as the “EHB
Appeal”. A copy of the NPDES Permit, the permit appeal, and amendment thereto are
attached as Exhibits D, E and F, respectively.

I.

Citizens and the Department are entitled to bring a federal action for injunctive relief and
penalties against Defendants for alleged violations of the Applicable Environmental Laws
and the NPDES Permit pursuant to Section 505 of the Clean Water Act, 33 U.S.C. § 1365.
Citizens and the Department allege that unless these violations are remedied and/or abated,
the risk of harm to Citizens, the Commonwealth, and the environment will continue.

3

 FINAL
J.

The Parties have agreed that settlement of this matter without further litigation, including
the claims raised in Citizens’ EHB Appeal, 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, before the taking of any testimony, without the adjudication
or admission of any issue of fact or law, it is HEREBY ORDERED, ADJUDGED AND
DECREED as follows:
IV.
1.

JURISDICTION AND VENUE

Jurisdiction and Venue. This Court has jurisdiction over the subject matter of this action
and the Parties pursuant to 28 U.S.C. § 1331 and 33 U.S.C. § 1365(a). For the purposes of
this Consent Decree and the underlying Complaints, Defendants waive all objections and
defenses to jurisdiction of this Court or to venue in this District. Defendants do 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.
V.

3.

APPLICABILITY

Parties Bound and Enforceability.
(a)

This Consent Decree shall be binding upon Citizens, Defendants, and their
respective officers, agents, servants, employees, successors, and assigns, and the
Department. Brunner and Talen are jointly and severally responsible for all
obligations and deadlines assigned to Brunner in this Consent Decree, although
4

 FINAL
Brunner is the primary entity responsible for implementing the obligations in
accordance with all applicable requirements and deadlines set forth in this Consent
Decree.
(b)

Once approved by the Department, all plans submitted pursuant to this Consent
Decree, including the deadlines and schedules for implementation of work
identified in such plans, shall be enforceable by the Department and by Citizens.
The Recitals contained in Paragraphs A through J, above, and the terms of the
“Now, Therefore” Paragraph that follows, are integral parts of this Consent Decree
and are incorporated by reference as if fully set forth herein.

4.

Notice. Brunner shall provide a copy of this Consent Decree to all officers, employees,
and agents of Brunner whose duties might reasonably include compliance with any
provision of this Consent Decree, as well as to any contractor retained to perform work
required under this Consent Decree. The foregoing requirement may be satisfied by
providing the contractor a hard copy, electronic copy, or on-line access to the Consent
Decree with notice to persons identified in Part XXI. (Notices), below. Brunner shall
condition any such contract upon performance of the work in conformity with the terms of
this Consent Decree.
VI.

5.

GENERAL PROVISIONS

Settlement and Reservations of Rights. If Defendants are in full and timely compliance
with the provisions of this Consent Decree (including without limitation all sampling and
analysis plans, sampling obligations, reporting obligations, and Department approvals and
requirements), as well as all permits and closure plans (as currently approved or as
modified and approved by the Department), the Department will deem the Defendants to
be in compliance with their closure obligations for Ash Basin 4 South, Ash Basin 5, Ash
5

 FINAL
Basin 6, and Ash Basin 7 under the Applicable Environmental Laws. The Department
reserves all rights to use any legal or equitable remedy available to enforce the provisions
of this Consent Decree. The Department also reserves all rights to use any administrative,
legal or equitable remedy available to address violations of, or to compel Defendants’
compliance with any federal, state, or local law or regulation, applicable permits, closure
plans, and sampling and analysis plans, or to remedy any condition at the BISES Site that
constitutes a violation or a hazard to the public health, safety, and welfare or the
environment. The Department reserves the right to require additional measures to achieve
compliance with applicable law. Defendants reserve the right to challenge any action that
the Department may take to require those measures.
6.

In consideration of the undertakings in this Consent Decree, the Citizens release, waive
and covenant not to sue Defendants for any and all claims, causes of action, and/or demands
for injunctive relief, damages, legal fees, penalties or fines for alleged violations of
Applicable Environmental Laws, the Resource Conservation and Recovery Act (“RCRA”),
42 U.S.C. § 6972 et seq., the Coal Combustion Residuals Rule (“CCR Rule”), 40 C.F.R
Part 257 and permits issued thereunder, that the Citizens have or may have as of the date
of entry of this Consent Decree, including without limitation, all claims which were or
could have been alleged in the Citizens’ Complaint and/or the Notice of Intent to Sue,
relating to Brunner Island. Nothing in this Consent Decree limits the right of Citizens to
participate in public hearings or submit comments regarding a proposed permit issued after
entry of this Consent Decree, or to challenge any proposed permit’s terms. In addition,
nothing in this Consent Decree limits the rights of Citizens to assert claims under applicable
law that first arise after entry of, and are not addressed in, this Consent Decree. Citizens

6

 FINAL
reserve the right to enforce the terms of this Consent Decree.
7.

Compliance with Law. This Consent Decree in no way affects or relieves Brunner’s
responsibilities to comply with applicable federal, state or local law, regulation, applicable
permits, closure plans, and sampling and analysis plans (whether in effect at the time of
entry of this Consent Decree, or thereafter). At all times, Brunner shall operate BISES to
achieve compliance with all applicable Federal and State environmental laws and
applicable permits, approvals, regulations, requirements, closure plans, and sampling and
analysis plans. Brunner shall perform the work required by this Consent Decree in
compliance with the requirements of all applicable federal, state, and local laws,
regulations, applicable permits, closure plans and sampling and analysis plans. This
Consent Decree is not a permit issued pursuant to any federal, state, or local statute or
regulation.
VII.

DEFINITIONS

For the purposes of this Consent Decree, the following terms shall be defined as follows:
Applicable Environmental Laws – shall have the meaning described in Paragraph B of
this Consent Decree.
Abatement – Compliance with the applicable Department residual waste regulations at 25
Pa. Code Chapter 288 (which addresses landfills) or Chapter 289 (which addresses
impoundments).
Basin – an interchangeable term for the existing disposal impoundments or Class III
monofills on the BISES Site.
Coal Ash – fly ash, bottom ash or boiler slag resulting from the combustion of coal, that is
or has been beneficially used, reused or reclaimed for a commercial, industrial or governmental
purpose. The term includes such materials that are stored, processed, transported or sold for
beneficial use, reuse or reclamation. For purposes of this Consent Decree, the term also includes
fly ash, bottom ash or boiler slag resulting from the combustion of coal, that is not and has not
been beneficially used, reused or reclaimed for a commercial, industrial or governmental purpose,
as set forth in 25 Pa. Code § 287.1.

7

 FINAL
CCR – Coal combustion residuals - means fly ash, bottom ash, boiler slag, and flue gas
desulfurization materials generated from burning coal for the purpose of generating electricity by
electric utilities and independent power producers, as set forth in 40 C.F.R. § 257.53.
Constituents of Concern - means Aluminum, Antimony, Arsenic, Barium, Beryllium,
Boron, Cadmium, Calcium, Chloride, Chromium, Cobalt, Fluoride, Iron, Lead, Lithium,
Manganese, Mercury, Molybdenum, Nickel, Potassium, pH, Selenium, Sodium, Sulfate, Total
Dissolved Solids (“TDS”), Thallium and, for purpose of surface water samples, Hardness.
Pollution - means contamination of any air, water, land or other natural resources of the
Commonwealth such as will create or is likely to create a public nuisance or to render such air,
water, land or other natural resources harmful, detrimental or injurious to public health, safety or
welfare, or to domestic, municipal, commercial, industrial, agricultural, recreational or other
legitimate beneficial uses, or to livestock, wild animals, birds, fish or other life. 35 P.S. § 6018.103.
Leachate – means a liquid, including suspended or dissolved components in the liquid, that
has percolated through or drained from solid waste, as set forth in 25 Pa. Code § 287.1.
VIII. COMPLIANCE REQUIREMENTS
Seep Investigation and Remediation
8.

Brunner shall take the actions set forth below to address seeps, springs and other saturated
areas (collectively “seeps”), in or arising from Ash Basins 5 and 6 and Disposal Area 8.

9.

Seep Inspections
(a)

Within 90 days of lodging of this Consent Decree, Brunner shall complete a visual
inspection of Ash Basins 5 and 6 and Disposal Area 8 to locate, identify, and
estimate flow of current seeps in those areas. Brunner shall provide the Department
and Citizens the results of the initial seep inspection (location and estimates of flow)
within 30 days of collection for informational purposes only. Brunner shall conduct
this visual inspection quarterly for the first year after entry of this Consent Decree
and submit an initial report (“Initial Seep Report”) to the Department cataloguing
the results of the investigation within 90 days of the last quarterly inspection.

(b)

Beginning one year after the entry of this Consent Decree, Brunner shall inspect
Ash Basins 5 and 6 and Disposal Area 8 for seeps on an annual basis until Ash

8

 FINAL
Basin 6 is dewatered as per Paragraph 13 below. For any newly discovered seeps
that were not identified in the Initial Seep Report, Brunner shall notify the
Department in writing of the location and estimated flow of such newly discovered
seeps within thirty (30) days of discovery.
(c)

All seeps shall be identified in the Initial Seep Report, any subsequent notifications
required under Paragraph 9(b), and all Annual Seep Reports required by Paragraph
9(d), by longitude/latitude and by map.

(d)

On an annual basis after submittal of the Initial Seep Report (until Ash Basin 6 is
dewatered), Brunner shall submit an updated seep report (“Annual Seep Report”)
to the Department, which will summarize the inspections conducted pursuant to
Paragraph 9.b. above, and will contain an inventory of each seep identified by date,
location (by longitude/latitude and map), and a summary of estimated flow data.

10.

Seep Monitoring and Remediation
(a)

Within 90 days after Ash Basin 6 is dewatered, Brunner shall perform a visual
inspection of Ash Basins 5 and 6 and Disposal Area 8 to determine what seeps
remain. Brunner will sample any remaining seeps for Constituents of Concern
(“COC”), as defined above, in accordance with Brunner’s permits, closure plan,
and as required by applicable regulations. Brunner will repeat this inspection and
sampling for a total of 4 quarters. All data will be reported to the Department within
90 days after completion of the last quarter of sampling.

(b)

For seeps that demonstrate flow during at least 2 of 4 quarters and are discharging
into surface water, Brunner shall evaluate the seep(s) flowing into surface water to
determine if the seep is naturally occurring and submit a written determination to

9

 FINAL
the Department within 60 days of the completion of the 4 quarters of seep
sampling. If Brunner demonstrates in the written determination, and the
Department concurs in writing, that the seep(s) is naturally occurring, then Brunner
is not required to take further action. If the seep is determined by Brunner or the
Department to not be naturally occurring, or the Department otherwise determines
that further action is required, Brunner shall propose a work plan and schedule
within 90 days of that determination to address the seep(s), taking into
consideration the flow, the flux of any COCs flowing into surface water, and the
source of the seeps. The work plan shall:
(i)

propose physical re-direction/re-routing of the seep(s) and include an
application for any necessary modification to Brunner’s NPDES permit,
subject to Department approval, or;

(ii)

propose elimination of the seep or other alternate means of addressing the
seep(s), subject to Department approval.

(iii)

If b(i) and b(ii) are not feasible, then Brunner shall contact the Department,
and the Department will determine if treatment and/or a NPDES permit is
necessary.

Brunner will implement the work plan upon approval by the Department, in accordance with the
schedule in the work plan and in compliance with all federal and state laws and regulations,
Brunner’s closure plans for disposal impoundments, and Brunner’s permits. This paragraph does
not supersede any obligations under federal and state laws and regulations, closure plans, or
permits.

10

 FINAL
(c)

For any seep discharging COCs into surface water, but which does not flow at least
2 of 4 quarters of a year, Brunner shall monitor that seep quarterly for an additional
year and follow the steps outlined in subparagraphs a. and b., above.

(d)

Notwithstanding the language of subparagraphs 10.a.- 10.c., above, if at any time,
the Department inspects the Brunner facility and/or the BISES Site and determines
there is a violation of Brunner’s permit(s), closure plan(s), or applicable residual
waste regulations, Brunner will be obligated to comply with a Department Notice
Of Violation to address that violation.

Ash Basin 6
11.

Ash Basin 6 is an unlined 68-acre impoundment which contains approximately 3.2 million
tons of coal ash waste. Brunner is currently implementing closure-by-removal of Ash
Basin 6 by dewatering the basin and excavating the dewatered coal ash for beneficial use.

12.

By agreement of the Parties prior to the lodging of the Consent Decree, Brunner ceased
discharging wastewater into Ash Basin 6 on June 1, 2019. By June 1, 2021, Ash Basin 6
shall be dewatered. By December 31, 2031, Brunner shall complete the excavation of the
contents of Ash Basin 6.

13.

Commencing June 1, 2022, Brunner will issue closure-by-removal progress reports to the
Department every two years describing the work completed and progress towards
completing the required excavation actions by December 31, 2031. The progress reports
must include an evaluation of potential actions that could feasibly accelerate the excavation
of the contents of Ash Basin 6, such as operational changes, transportation changes, and
potential end use changes.

14.

Brunner shall continue to monitor groundwater in the Ash Basin 6 area throughout the

11

 FINAL
dewatering and excavation process in accordance with Brunner’s Sampling Analysis Plan
and the Pennsylvania Residual Waste Regulations at 25 Pa. Code §§ 289.261-289.265.
Once dewatering is complete, Brunner shall collect an additional 8 quarters of groundwater
monitoring data and evaluate the effects of dewatering and excavation, looking at
constituent concentrations, mass flux, modeling and other relevant criteria to assess
groundwater quality, trends over time, and the need for additional assessment and/or
abatement activities. Within 120 days of completing the above groundwater monitoring,
Brunner shall submit to the Department, for review and approval, a report of its
groundwater assessment activities. Brunner will address additional abatement of Ash
Basin 6 groundwater, if needed, in accordance with its residual waste permit, the residual
waste regulations, and other applicable laws in effect at the time.
15.

Brunner shall comply with the monitoring requirements contained in Brunner’s Sampling
Analysis Plan and in the Pennsylvania Residual Waste Regulations, 25 Pa. Code §§
289.261-289.265, to achieve and demonstrate restoration of Ash Basin 6 groundwater,
consistent with then applicable law. Brunner shall continue monitoring and post-closure
care until Ash Basin 6 groundwater meets groundwater quality standards required for final
closure certification from the Department under the Pennsylvania Residual Waste
Regulations. Brunner will prepare and submit trend analyses to the Department annually
in addition to the required monitoring data.

Disposal Area 8
16.

Disposal Area 8 is a lined 21-acre landfill. Constructed in 2009, the landfill was built with
Department approval, on a closed, unlined 100-acre coal ash impoundment, Ash Basin 5.
In addition to the clay and geosynthetic liner, a leachate collection system for Disposal

12

 FINAL
Area 8 was installed to pump and convey leachate, which currently is sent to BISES’s Flue
Gas Desulfurization (FGD) Wastewater Treatment Plant for treatment and discharge from
Outfall 007. The leachate detection zone beneath the leachate collection system is in place
to detect the migration of leachate beyond the leachate collection zone. Ash Basin 5 was
closed in 1988 with approximately 5.5 million cubic yards of ash material left in place.
Ash Basin 5 does not have an impermeable cap.
17.

COCs have been detected in the leachate detection zone beneath Disposal Area 8. Within
45 days of entry of this Consent Decree, Brunner shall submit to the Department a proposal
for interim measures to address contaminants in the leachate detection zone beneath
Disposal Area 8. Effective upon Department approval, Brunner shall implement the
interim measures. Within 180 days of entry of this Consent Decree, Brunner will submit
to the Department a Landfill Operations and Improvement Plan, which shall be
implemented after Department approval, and receipt of all necessary permits, in accordance
with the schedule in the approved Plan. The goal of the Plan is to ensure that the liner and
leachate collection system meet the conditions in Brunner’s residual waste permit and are
in full compliance with Applicable Environmental Laws.

18.

Within sixty (60) days after receipt of the permit modification specified in paragraph 39(c),
Brunner shall direct the leachate from the leachate collection system and water from the
detection zone beneath Disposal Area 8 to the Auxiliary Wastewater Treatment Plant for
treatment and discharge from Outfall 008.

Ash Basin 4 South
19.

Ash Basin 4 South is an unlined disposal impoundment approximately 26 acres in size.
Analytical results of groundwater samples indicate that leachate from the residual waste

13

 FINAL
disposed in Basin 4 South is migrating outside the permit area and causing groundwater
degradation. Groundwater monitoring wells located between Basin 4 South and the
discharge channel to the east show elevated levels of contaminants. As part of a prior
remedial action implemented when the basin was operating, a grout wall was installed to
contain leachate from the basin. After closure, portions of the grout wall were removed
during cooling tower construction, allowing leachate to migrate outside of the basin.
20.

Brunner agrees that it will undertake abatement to address the Basin 4 South groundwater
conditions described in Paragraph 19, as set forth in more detail in Paragraphs 21 through
25, below.

21.

Within 90 days of entry of this Consent Decree, Brunner shall submit to the Department a
work plan for the repair of Basin 4 South’s grout wall along with applications for any
needed Department permit applications. The work plan may consider, as appropriate, the
safety, feasibility and effectiveness of the repairs, given current site conditions.

22.

Upon Department approval of the work plan and the issuance of any needed permits,
Brunner shall complete the grout wall repairs, in accordance with the scope and schedule
contained in the approved work plan.

23.

Upon completion, Brunner shall notify the Department of completed repairs by submitting
Form 19R Certification of Facility Construction Activity. The Department will inspect the
repairs in order to determine whether the grout wall has been repaired in accordance with
the approved work plan.

24.

The Department will notify Brunner, in writing, regarding any deficiencies in the repair of
the grout wall and, within 45 days of receipt of notification (or such longer time as Brunner
and the Department shall agree), Brunner shall address the deficiencies.

14

Brunner’s

 FINAL
obligations set forth in Paragraph 22 above, to repair the grout wall will continue until the
Department determines that Brunner has fully complied with Paragraph 22.
25.

Once the abatement actions described in Paragraphs 21 through 24 are complete, Brunner
shall collect an additional 12 quarters of groundwater monitoring for the constituents listed
in Brunner’s permitted Sampling and Analysis Plan, to evaluate the effectiveness of the
abatement taking into consideration constituent concentrations, mass flux, modeling, and
other relevant criteria to assess groundwater quality, trends over time, and the need for
additional abatement activities. Within 90 days after Brunner’s receipt of the last quarter
of groundwater monitoring results, Brunner shall submit to the Department a groundwater
evaluation report. The Department will review the groundwater evaluation report. If the
results of the groundwater evaluation report continue to show groundwater degradation
under 25 Pa. Code § 287.1 (taking into consideration the factors in the first sentence of this
paragraph) within 90 days of notification from the Department, Brunner shall submit to the
Department for review and approval a follow-up abatement plan to address groundwater
quality in the Ash Basin 4 South area. Brunner shall implement the follow-up abatement
plan upon receiving Department approval, in accordance with the schedule contained in
the approved plan. Brunner shall continue to perform abatement activities until it
demonstrates compliance with its closure plan and then applicable groundwater standards.

Ash Basin 5
26.

Ash Basin 5 is an unlined disposal impoundment approximately 99 acres in size. A 5-acre
Mill Rejects “Pyrite” Tomb exists in the northeast corner of Ash Basin 5. Analytical data
from Monitoring Well 8-4 show elevated levels of contaminants with resulting
groundwater degradation outside of Ash Basin 5. The Department believes that the Pyrite

15

 FINAL
Tomb is the source of groundwater degradation outside of Ash Basin 5.
27.

A bottom ash processing area also exists on the northwest portion of Ash Basin
5. Analytical data from Monitoring Wells 8-5A and 8-5B show that elevated levels of
contaminants from the residual waste in Ash Basin 5 are causing groundwater degradation
outside of the basin.

28.

Brunner agrees that it will undertake abatement to address the Ash Basin 5 groundwater
conditions described in Paragraph 26 and 27, as set forth in more detail in Paragraphs 29
through 31, below.

29.

Within 120 days of entry of this Consent Decree, Brunner shall submit a work plan, for
Department approval, for any additional assessment and recommended abatement actions
for the northern portion of Ash Basin 5, including the Pyrite Tomb and the bottom ash
processing area.

30.

The work plan will include a summary of the permitting history for, construction of, and
data relevant to, the Pyrite Tomb. The work plan shall recommend abatement actions for
the Ash Basin 5 area to limit infiltration and contaminant migration from the northern
portion of Ash Basin 5, including from the Pyrite Tomb and bottom ash processing area.
Upon Department approval of the work plan, Brunner shall apply for all necessary permits
and implement the plan in accordance with the schedule in the work plan and applicable
permits.

31.

Once the abatement actions described in Paragraphs 29 and 30 are complete, Brunner shall
collect an additional 12 quarters of groundwater monitoring for COCs and constituents
listed in Brunner’s permitted Sampling and Analysis Plan, to evaluate the effectiveness of
the abatement, taking into consideration constituent concentrations, mass flux, modeling,

16

 FINAL
and other relevant criteria to assess groundwater quality, trends over time and the need for
additional abatement activities. Within 90 days after Brunner’s receipt of the last quarter
of groundwater monitoring results, Brunner shall submit to the Department a groundwater
evaluation report. The Department will review the groundwater evaluation report. If the
results of the groundwater evaluation report continue to show groundwater degradation
under 25 Pa. Code § 287.1 (taking into consideration the factors in the first sentence of this
paragraph) within 90 days of notification from the Department, Brunner shall submit to the
Department for review and approval a follow-up abatement plan to address groundwater
quality in the Ash Basin 5 area. Brunner shall implement the follow-up abatement plan
upon receiving Department approval, in accordance with the schedule contained in the
approved plan.

Brunner shall continue to perform abatement activities until it

demonstrates compliance with its closure plan and then applicable groundwater standards.
32.

The Parties expect improvement in the groundwater quality in the southern portion of Ash
Basin 5 upon the dewatering of Ash Basin 6.

Brunner shall continue to monitor

groundwater in the southern portion of Ash Basin 5 and include that data in the evaluation
conducted pursuant to Paragraph 31 and in accordance with its closure plan, the residual
waste regulations, and other applicable laws in effect at the time.
Ash Basin 7
33.

Ash Basin 7 is an unlined disposal impoundment approximately 67 acres in
size. Analytical data from Monitoring Well 7-5 indicate that elevated levels of
contaminants from the residual waste in Ash Basin 7 are causing groundwater degradation
outside of Ash Basin 7.

34.

Brunner agrees that it shall undertake abatement to address the groundwater conditions

17

 FINAL
observed in Monitoring Well 7-5 as described in Paragraph 33, above, as set forth in more
detail in Paragraphs 35 and 36, below.
35.

Within 90 days of entry of this Consent Decree, Brunner shall provide the Department with
a summary of actions taken at Ash Basin 7, along with a plan for any additional assessment
(including assessing the existence of “hot spots,” i.e., isolated areas of highly-elevated
contaminants, including but not limited to, arsenic and boron) and recommended abatement
actions for the area around Monitoring Well 7-5. Upon approval by the Department,
Brunner shall apply for any required permits and implement the plan in accordance with
the scope and schedule in the approved work plan and applicable permits.

36.

Upon completion of the abatement action specified in Paragraph 35, Brunner shall conduct
12 quarters of groundwater quality sampling at Monitoring Well 7-5 for the constituents
listed in Brunner’s permitted Sampling and Analysis Plan to evaluate the effectiveness of
the abatement actions implemented, taking into consideration constituent concentrations,
mass flux, modeling, and other relevant criteria to assess groundwater quality, trends over
time, and the need for additional abatement activities. Within 90 days after Brunner’s
receipt of the last quarter of groundwater monitoring results, Brunner shall submit to the
Department a groundwater evaluation report. The Department will review the groundwater
evaluation report. If the results of the groundwater evaluation report continue to show
groundwater degradation under 25 Pa. Code § 287.1 (taking into consideration the factors
in the first sentence of this paragraph) within 90 days of notification from the Department,
Brunner shall submit to the Department for review and approval a follow-up abatement
plan to address the groundwater quality observed in Monitoring Well 7-5. Brunner shall
implement the follow-up abatement plan upon receiving Department approval, in

18

 FINAL
accordance with the schedule contained in the approved plan. Brunner shall continue to
perform abatement activities until it demonstrates compliance with its closure plan and
then applicable groundwater standards.
Sampling of Black Gut Creek
37.

Within 90 days of entry of this Consent Decree, Brunner shall submit to the Department
for review and approval an Environmental Monitoring Plan for Black Gut Creek consisting
of surface water sampling for COCs and macroinvertebrate sampling, and any other
parameters required by the Department’s Water Quality Monitoring Protocols for Streams
and Rivers (2018). Sampling shall be conducted two (2) times per year (once in Spring
and once in the Fall as defined in the Department’s macroinvertebrate sampling protocol)
during the 2-year period when Ash Basin 6 is being dewatered and will follow the
Department’s macroinvertebrate and surface water sampling protocols as referenced
above. Brunner shall share the results of the surface water sampling with the Department
and Citizens within 90 days of each sampling event. Brunner will prepare and submit to
the Department an assessment report of the sampling activities within 6 months of
completing the two-year study, along with a recommendation for follow-up actions, if any.
IX.
MODIFICATIONS TO BRUNNER’S NPDES PERMIT,
ADDITIONAL OPERATING CONDITIONS AND MEASURES TO ADDRESS
NPDES EFFLUENT VIOLATIONS

38.

Within 120 days of entry of the Consent Decree, Brunner shall submit to the Department,
for review and approval, an Operation and Maintenance Improvement Plan for the BISES
Sewage Treatment Plant that discharges to Outfall 003. The purpose of the plan is to
identify steps to improve the Sewage Treatment Plant’s compliance with the effluent
limitations in Brunner’s NPDES permit. Brunner shall implement the plan after approval

19

 FINAL
by the Department, and the issuance of any necessary permits, in accordance with the
schedule in the approved plan.
39.

Within 90 days of lodging of this Consent Decree, Brunner shall submit to the Department
a request for a modification to its NPDES Permit to address the following:
(a)

Correct coordinates regarding Stormwater Outfall 021;

(b)

Removal of Outfall 006 from its NPDES Permit;

(c)

Accounting for the Total Nitrogen and Total Phosphorus from Outfall 007 that will
then be redirected and discharged from Outfall 008, along with any other
modifications to effluent limits needed to account for the re-routing of the discharge
from Disposal Area 8 to the Auxiliary Wastewater Treatment plant, as outlined in
Paragraph 18; and

(d)
40.

Identification, after an audit, of any additional regulated stormwater outfalls.

Within 60 days of entry of the Consent Decree, Brunner shall submit to the Department,
for review and approval, a plan to sample each stormwater outfall once for Total Nitrogen.
Within 90 days of Department approval, Brunner shall undertake the sampling in
accordance with the approved plan. The monitoring results are solely for informational
purposes, since Brunner is currently only required to purchase Nitrogen credits for Outfall
007 (and that portion of the flow from Outfall 007 that will be re-directed to Outfall 008
pursuant to Paragraph 39.c., above). Unless there is a change to the current Chesapeake
Bay TMDL, these monitoring results will not be utilized by the Department or the Citizens
to require Brunner to conduct additional nutrient sampling beyond its NPDES permit
requirements or as the basis of any enforcement action or citizens’ suit.

41.

Within 60 days of entry of the Consent Decree, Brunner shall submit to the Department,

20

 FINAL
for review and approval, a plan with a schedule to sample (“Sampling Plan”) all required
NPDES permit application parameters to determine effluent quality at Outfall 001 without
interference from the discharge from Outfall 007. Upon Department approval, Brunner
shall implement the Sampling Plan in accordance with the schedule in the approved
Sampling Plan. Brunner shall submit the sampling results to the Department within 60
days of receipt of the results. The Department will use its best efforts to perform a Water
Quality-based Effluent Limitation (“WQBEL”) analysis within 30 days of receipt of the
sampling results. Based upon the Department’s WQBEL analysis, the Department will
determine if effluent limitations are necessary at Outfall 001. If limitations are
necessary, Brunner shall submit a proposal to the Department, for review and approval, to
permanently move the Outfall 001 monitoring point to avoid interference from the
discharge at Outfall 007 (and Outfall 008 once that outfall comes on line).
42.

With regard to the thermal discharge from Outfall 001, any time Brunner notifies the
Department of a temperature change during a unit shut down in which the heat source is
removed from the discharge channel and which results in a 6-degree Fahrenheit change of
temperature during a one-hour period, Brunner shall notify Citizens by email at
approximately the same time it notifies the Department as required by Part C, Section VI
of Brunner’s NPDES Permit. The Department will post this information on the
Department’s internet site within a reasonable amount of time after receipt by the
Department. Within 3 hours and again within 24 hours of recording of a 6-degree
Fahrenheit or greater one-hour temperature change, Brunner shall commence a visual
inspection from the water’s edge, starting at the water intake, upstream of the discharge
channel, and ending at the 5000-foot compliance point to assess the impact of the

21

 FINAL
temperature change on fish. The first inspection need not be performed by trained
personnel and shall be performed to get an initial location and approximate number of
obviously distressed and/or dead fish. Within 10 business days thereafter, Brunner shall
submit a report to the Department setting forth: the reasons for the temperature excursion;
steps that will be taken to prevent a reoccurrence; and, the results of the visual inspections
including the location of, and approximate number of, visibly distressed and/or dead fish.
43.

In accordance with its NPDES permit, Brunner operates its cooling towers starting March
1 each year, unless cold weather or freezing conditions threaten operations and Brunner
obtains permission from the Department to commence operating the cooling towers at a
later date. If the cooling towers are operating and cold weather threatens continued
operation, Brunner shall, except as provided below and to the extent feasible, follow the
steps in its Operations Manual for cold weather conditions before seeking Department
approval to shut down the cooling towers. This paragraph is not intended to require
Brunner to start the cooling towers on March 1st if cold weather threatens the cooling
towers or their operations, and Brunner has obtained Department approval not to start the
cooling towers in light of the cold weather conditions. Brunner shall request Department
approval to shut down the cooling towers or to not start operations on March 1st, as the
case may be, by email correspondence to the Department, with a copy to the Citizens,
setting forth the reason(s) for the request.

44.

Brunner has submitted a Section 316(a) Demonstration Work Plan to the Department in
accordance with Part C, Section II. F. of its NPDES permit. The Department and Citizens
commented on that Work Plan. The Work Plan has been approved by the Department and
is incorporated into this Consent Decree as Exhibit G. Brunner shall implement the Work

22

 FINAL
Plan and submit the results and any additional evaluation(s) to support its Section 316(a)
variance with the next application for renewal of its NPDES permit currently due on
January 31, 2023. The Department will make a determination regarding the variance as
part of the NPDES permit renewal. Brunner agrees to provide the Department with interim
reports, on a frequency to be agreed to by all Parties within 90 days after the entry of the
Consent Decree, that includes the data gathered and analyzed pursuant to the Work Plan.
If the Department has granted a 316(a) variance, Brunner will submit the information
necessary to support the continuation of its Section 316(a) variance in future NPDES
renewal applications, in accordance with the law and regulations then in existence.
X.
45.

COMMUNICATIONS, REPORTING, NOTIFICATIONS

Within 180 days of entry of this Consent Decree and annually thereafter, Brunner shall
submit written status reports to the Department and Citizens. A status report shall be
submitted in addition to any other reporting, plan, schedule, or certification required under
this Consent Decree or pursuant to law, regulation, or permit. The status report shall state
and describe the cause of any failure to comply with this Consent Decree and at a minimum
shall include:
(a)

The deadlines and other milestones that Brunner was required to meet during the
reporting period;

(b)

The progress it made toward meeting the deadlines and other milestones that
Brunner was required to meet during the reporting period;

(c)

The identification of, and reasons for, any noncompliance with any condition or
obligation established by this Consent Decree; and,

(d)

A description of any other matters relevant to the status of its compliance with this
Consent Decree.
23

 FINAL
46.

Except as otherwise provided in Part XVI (Force Majeure), notification to the Department
of any noncompliance with any provision of this Consent Decree or anticipated delay in
performing any obligation herein shall not excuse Brunner’s noncompliance or anticipated
delay.

47.

Brunner shall promptly provide Citizens with all deliverables required under this Consent
Decree, as well as quarterly groundwater monitoring data from Ash Basins 5 and 6 and
Disposal Area 8.

Brunner shall submit (in electronic format where possible) other

documentation related to the compliance with and enforcement of this Consent Decree,
including copies of discharge monitoring reports and attachments thereto, upon request by
Citizens, unless previously submitted by Brunner to Citizens.
48.

Brunner, the Citizens, and the Department will meet annually, beginning on June 1, 2020,
to discuss compliance with this Consent Decree, including, but not limited to, a discussion
of data submitted by Brunner pursuant to this Consent Decree.
XI.

49.

ADDITIONAL INFORMATION AVAILABLE TO THE PUBLIC

All approved work plans, final reports, and other deliverables (including all attachments),
required by the Consent Decree and submitted by Brunner to the Department pursuant to
this Consent Decree, will be posted by the Department on its website within a reasonable
amount of time after receipt by the Department, for purposes of providing easily accessible
information to the public regarding implementation of this Consent Decree. All data
submitted by Brunner for posting on the Department’s website shall be submitted to the
Department electronically in PDF format as well as in hard copy format, with PDF copies
to the Citizens.
XII.

50.

NOTICE TO THE PUBLIC

Public Notice. This Consent Decree shall be lodged with the Court for a period of not less
24

 FINAL
than 30 days for public notice and comment in accordance with Section 616 of the
Pennsylvania Solid Waste Management Act, 35 P.S. § 6018.616, and applicable federal
law. Notice of the proposed Consent Decree and a 30-day opportunity to provide comment
to the Department will be published in the Pennsylvania Bulletin and in a newspaper of
general circulation in York County. The Department reserves the right to withdraw from
the Consent Decree or withhold its consent if the comments regarding the Consent Decree
disclose facts or considerations which indicate that the Consent Decree is inappropriate,
improper, or inadequate until the Court approves of the Consent Decree. Upon lodging,
pursuant to Section 505(c)(3) of the Clean Water Act, 33 U.S.C. § 1365(c), this Consent
Decree will be forwarded to the United States Department of Justice and the United States
Environmental Protection Agency for a statutorily-mandated 45-day review period.
XIII. CIVIL PENALTY
51.

Civil Penalty. In full satisfaction and settlement of the Department’s claims for: (i.) civil
penalties under Section 605 of the Clean Streams Law, 35 P.S. § 691.605, for violations of
the effluent limitations of NPDES Permit No. PA0008281 that occurred between a date
that is five years prior to the entry of this Consent Decree and the date of entry of this
Consent Decree; and (ii.) civil penalties under Section 605 of the Solid Waste Management
Act, 35 P.S. § 6018.605 and Section 605 of the Clean Streams Law, 35 P.S. § 691.605, for
the groundwater degradation attributable to Ash Basins 4 South, 5, 6, and 7 and Disposal
Area 8 that occurred between a date that is twenty years prior to the entry of this Consent
Decree and the date of entry of this Consent Decree. Brunner shall pay a total civil penalty
to the Department in the amount of $1,000,000.00. Brunner shall pay as follows:
(a)

30 days after entry of this Consent Decree:

25

 FINAL
(i)

$330,533.32 payable to the “Commonwealth of Pennsylvania,” with the
memo line directed to the “Solid Waste Abatement Fund” and mailed to Mr.
Anthony Rathfon, Waste Program, 909 Elmerton Avenue, Harrisburg, PA
17110.

(ii)

$8,400.00 payable to the “Commonwealth of Pennsylvania,” with the memo
line directed to the “Clean Water Fund” and mailed to Ms. Maria Bebenek,
Clean Water Program, 909 Elmerton Avenue, Harrisburg, PA 17110.

(b)

150 days after entry of this Consent Decree: $330,533.34 payable to the
“Commonwealth of Pennsylvania,” with the memo line directed to the “Solid
Waste Abatement Fund” and mailed to Mr. Anthony Rathfon, Waste Program, 909
Elmerton Avenue, Harrisburg, PA 17110.

(c)

366 days after entry of this Consent Decree: $330,533.34 payable to the
“Commonwealth of Pennsylvania,” with the memo line directed to the “Solid
Waste Abatement Fund” and mailed to Mr. Anthony Rathfon, Waste Program, 909
Elmerton Avenue, Harrisburg, PA 17110.

52.

In full satisfaction and settlement of the Citizens’ claims for civil penalties for alleged
violations of Applicable Environmental Laws, RCRA, the CCR Rule, and permits issued
thereunder, through the date of entry of this Consent Decree, including, without limitation,
claims or violations which were or could have been set forth in Citizens’ Complaint,
Brunner shall, within thirty (30) days of entry of this Consent Decree, pay $100,000 toward
one or more qualifying Supplemental Environmental Projects (“SEPs”) implemented by
the Watershed Alliance of York (“WAY”) to reduce or mitigate the effects of water
pollution in the Lower Susquehanna River Watershed. A “qualifying SEP” shall mean a

26

 FINAL
SEP that comports with both the Department’s and EPA’s policies for environmental
projects. See Policy Office, DEP, Policy for the Consideration of Community
Environmental Projects in Conjunction with Assessment of Civil Penalty, Document No.
012-4180-001

(Apr.

19,

2014),

http://www.depgreenport.state.pa.us/elibrary/PDF

Provider.ashx?action=PDFStream&docID=7424&chksum=&revision=0&docName=012
-4180-001+FINAL+CEP+Policy+4-4-14.pdf&nativeExt=pdf&PromptToSave=False&
Size=103235&ViewerMode=2&overlay=0; Cynthia Giles, Assistant Administrator, EPA,
Issuance of the 2015 Update to the 1998 U.S. Environmental Protection Agency
Supplemental Environmental Projects Policy (Mar. 10, 2015), https://www.epa.gov/sites/
production/files/2015-04/documents/sepupdated policy15.pdf.

Appendix A to this

Consent Decree, entitled “Supplemental Environmental Project (“SEP”) Agreement,”
contains details on several qualifying SEPs and establishes requirements and schedules for
selection and implementation of the SEP(s) by WAY. See Appendix A. Brunner shall
comply with all requirements, schedules, and other obligations contained in the SEP
Agreement as well as state and federal SEP policies to the extent applicable to Brunner.
53.

As of the date of this Consent Decree, Brunner is not required to perform or develop any
of the SEPs identified in Appendix A by any federal, state, or local law or regulation; nor
is Brunner required to perform or develop the SEP(s) by any other agreement, grant or as
injunctive relief in this or any other case. Brunner has not received, and is not presently
negotiating to receive, credit in any other enforcement action for the SEP. No part of the
expenditures for the SEPs identified in Appendix A shall include federal or state funds,
including federal or state low interest loans, contracts, or grants.
XIV. STIPULATED PENALTIES

54.

Stipulated Civil Penalties
27

 FINAL
(a)

In the event Brunner fails to comply in a timely manner with the compliance
provisions set forth below, Brunner shall be in violation of this Consent Decree
and, in addition to other applicable remedies, shall pay a civil penalty to the
Department in the amount determined under the following schedule:
(i)

For any violation of Paragraph(s) 45 and 47, $500.00 per day for each
violation;

(ii)

For any violation of Paragraph(s) 8-10, 12-15, 17-18, 20-25, 28-32, 34-44,
and 51-52, $750.00 per day for the first 30 days of each violation, and
$1000.00 per day for each violation extending beyond the first 30 days.

(b)

Brunner shall be liable for stipulated penalties to the Department for violations as
specified above, unless excused under Part XVI. (Force Majeure) of this Consent
Decree. A violation includes failing to perform any obligation required by the
terms of this Consent Decree, including any work plan or schedule approved under
this Consent Decree, according to all applicable requirements of this Consent
Decree and within the specified time schedules established by or approved under
this Consent Decree. Stipulated penalties shall begin to accrue on the day after
performance is due or on the day a violation occurs, whichever is applicable, and
shall continue to accrue until performance is satisfactorily completed or until the
violation ceases. Stipulated penalties shall accrue simultaneously for separate
violations of this Consent Decree.

(c)

Subject to Brunner invoking Part XVII. (Dispute Resolution) of this Consent
Decree, Brunner shall pay any stipulated penalty pursuant to subparagraph 54.a.,
above, within 30 days of receiving a written demand by the Department and the

28

 FINAL
payment shall be forwarded as described in the written demand. Nothing in this
paragraph relieves Brunner of any obligation it has to timely report a known
violation of this Consent Decree. In the event that the Department discovers that
Brunner failed to timely report a known violation of this Consent Decree to the
Department, the amount of the stipulated penalties due the Department shall be
double the amounts of the stipulated penalties set forth above in subparagraph
(a)(ii).
(d)

Stipulated penalties shall accrue during Dispute Resolution but shall not be paid
unless and until the Department prevails in that dispute, in which case, the penalties
shall be paid within 60 days of a final decision on the dispute.

(e)

Any payment under this paragraph shall neither waive Brunner’s duty to meet its
obligations under this Consent Decree nor preclude the Department from
commencing an action to compel Brunner’s compliance with the terms and
conditions of this Consent Decree. This payment resolves only Brunner’s liability
for stipulated penalties arising from the violation of this Consent Decree for which
the payment is made. Stipulated penalties shall be due pursuant to the notice set
forth above.
XV.

55.

PLAN SUBMISSIONS

Unless another timeframe is specifically required by this Consent Decree, the Department
will use its best efforts to promptly review all plans submitted for approval by no later than
90 days from receipt. In the event the Department’s review and approval of a plan extends
beyond 90 days, and the delay is not due to information missing or an otherwise incomplete
plan submitted by Brunner, the Department will notify Brunner and Citizens in writing and
provide the reasons for the delay. If the Department disapproves a plan in whole or in part,
29

 FINAL
the Department will notify Brunner in writing and set forth in such written notification the
reasons for the disapproval and the steps Brunner must take to cure the identified
deficiencies. Upon receipt of such notification, Brunner shall have 30 days (or such longer
time period as Brunner and the Department shall agree to in writing) to resubmit a
disapproved plan to the Department for review and approval or denial.
56.

In the event the Department’s review and approval of a plan extends beyond 90 days, and
the plan is thereafter approved, the deadlines established in the plan, including any
implementation schedules, shall be extended by the number of days the Department’s
review and approval went beyond 90 days for purposes of compliance with this Consent
Decree.

57.

Citizens shall have the right to review all plans, schedules, and reports submitted by
Brunner pursuant to this Consent Decree and shall provide the Department and Brunner
with written comments within 30 days of receipt of such plans, schedules, or reports. To
the extent Citizens disagree with the Department’s approval or disapproval of a plan,
schedule, or report submitted by Brunner pursuant to this Consent Decree, and if the plan,
schedule or report is a “covered dispute” under the Dispute Resolution process, Citizens
may invoke dispute resolution pursuant to Part XVII. (Dispute Resolution) of this Consent
Decree.
XVI. FORCE MAJEURE

58.

Force Majeure.
(a)

In the event that Defendants are prevented from complying in a timely manner with
any time limit imposed in this Consent Decree solely because of a strike, fire, flood,
act of God or other circumstance beyond Defendants’ control and which
Defendants, by the exercise of all reasonable diligence, are unable to prevent
30

 FINAL
(including delays in issuing permits), then Defendants may petition the Department
for an extension of time. An increase in the cost of performing the obligations set
forth in this Consent Decree shall not constitute circumstances beyond Defendants’
control. Defendants’ economic inability to comply with any of the obligations of
this Consent Decree shall not be grounds for any extension of time.
(b)

Defendants shall only be entitled to the benefits of this paragraph if they notify the
Department within 7 working days by telephone and within 14 working days in
writing of the date either Talen or Brunner becomes aware or reasonably should
have become aware of the event impeding performance. The written submission
shall include all necessary documentation, as well as an affidavit from an authorized
individual specifying the reasons for the delay, the expected duration of the delay,
and the efforts which have been made and are being made by Defendants to mitigate
the effects of the event and to minimize the length of the delay. The initial written
submission may be supplemented within 14 working days of its submission.
Defendants’ failure to comply with the requirements of this paragraph specifically
and in a timely fashion shall render this paragraph null and of no effect as to the
particular incident involved. A copy of all notifications submitted pursuant to this
paragraph shall also be submitted to Citizens at the time they are submitted to the
Department.

(c)

The Department will decide whether to grant all or part of the extension requested
on the basis of all documentation submitted by Defendants and other information
available to the Department. In any subsequent litigation, Defendants shall have
the burden of proving that the Department’s refusal to grant the requested extension

31

 FINAL
was arbitrary and capricious or otherwise not in accordance with law based upon
the information then available to it.
(d)

Citizens and Defendants shall have the right to institute Part XVII. (Dispute
Resolution) of this Consent Decree should either disagree with the Department’s
decision regarding a request for extension and/or tolling of stipulated penalties due
to a Force Majeure event.
XVII. DISPUTE RESOLUTION

59.

The Dispute Resolution procedures contained in this Part shall be the exclusive mechanism
for the Parties to raise and resolve disputes arising under or with respect to this Consent
Decree (“Covered Dispute”), except for the items and issues specifically excluded in
Paragraph 68 of this Consent Decree.

60.

A Covered Dispute shall be considered to have arisen when one party sends the other
Parties a written Notice of Dispute. Such Notice of Dispute shall state clearly the matter in
dispute. In the instance where Citizens did not invoke Dispute Resolution, they will notify
the Department and Defendants in writing of their intent to not participate in the process
within 10 days of receipt of a Notice of Dispute.

61.

Informal Dispute Resolution: Any Covered Dispute shall, in the first instance, be the
subject of informal negotiations between the Parties in an attempt to resolve the dispute.
The Parties shall have 30 days following receipt of a Notice of Dispute to reach agreement
through informal dispute resolution mechanisms, unless a longer time period is agreed to
and modified in writing by all the Parties.

62.

All Parties are entitled to meet with the other Parties during this 30-day period for the
purpose of attempting to resolve the dispute.

63.

Formal Dispute Resolution: If the Parties cannot reach agreement on the dispute through
32

 FINAL
informal dispute resolution, formal dispute resolution shall be invoked by any party by
providing to the other Parties a written statement setting forth its proposed resolution of
the dispute (“Statement of Position”) within 15 days after the expiration of the 30-day
period or other time period agreed upon in writing. The Statement of Position shall include,
but need not be limited to, any factual data, analysis, or opinion supporting Defendants’ or
the Citizens’ positions and any supporting documentation relied upon by Defendants or the
Citizens.
64.

Within 30 days following receipt of Defendants’ and Citizens’ Statements of Position, the
Department will provide to Defendants and Citizens a written Statement of Decision,
signed by the Regional Director of the Department’s Southcentral Regional Office which
shall include, but not be limited to, any factual data, analysis, or opinion supporting that
position and any supporting documentation relied upon by the Department.

The

Department’s Statement of Decision shall be binding on Defendants and the Citizens,
unless Defendants or the Citizens file a motion for judicial review of the dispute in
accordance with the following paragraph.
65.

After the Formal Dispute Resolution Process, Defendants or Citizens may seek judicial
resolution of the Covered Dispute by filing with the Court, and serving on the other Parties,
a motion requesting resolution of the Covered Dispute. The motion shall contain a written
statement of the position of the party seeking judicial resolution of the matter in dispute,
including any supporting factual data, analysis, opinion, or documentation, and shall set
forth the relief requested and any schedule within which the dispute must be resolved for
orderly implementation of the Consent Decree. The Parties who did not invoke Dispute
Resolution will respond to the motion within the time period allowed by the Local Rules

33

 FINAL
of this Court.
66.

Standard of Review:

In any dispute under this Part, the Department’s position is

reviewable on the record and must be upheld unless arbitrary and capricious or otherwise
not in accordance with law. The party seeking dispute resolution, Defendants and/or
Citizens, shall bear the burden of demonstrating that Defendants’ and/or Citizens’ position
best complies with the terms and conditions of and further the objectives of, this Consent
Decree, and federal and state laws.
67.

The existence of any Covered Dispute, as defined in this Part, and the Department’s
consideration of matters placed into dispute, shall not excuse, toll, or suspend any
compliance obligation or deadline unrelated to the matter in dispute.

68.

The Department’s issuance, renewal, modification, denial or revocation of a permit or
variance; the Department’s establishing and/or implementation of water quality standards;
the Department’s issuance of orders or other enforcement or compliance-related actions,
including but not limited to, Department decisions with respect to the Department’s
inspections and sampling, are not subject to dispute resolution under this Consent Decree.
To the extent they are appealable actions under governing law, they shall be exclusively
subject to challenge before the Pennsylvania Environmental Hearing Board in accordance
with the provisions of the Environmental Hearing Board Act, 35 P.S. §§ 7511-7516.
XVIII. RIGHT OF ENTRY

69.

Brunner shall allow authorized representatives of the Department to enter the BISES Site
during business hours for the purpose of collecting samples, information and/or
photographs, and any other activity necessary to ascertain and evaluate whether Brunner
and BISES are in compliance with this Consent Decree, the NPDES Permit, the residual
waste permits, closure plans, and Commonwealth or federal law. Upon request of the
34

 FINAL
Department, Brunner shall provide the Department with access to any records or
information that may be related to Brunner’s operations, the BISES Site, this Consent
Decree or Brunner’s compliance with Commonwealth or federal law; unless such records
or information are protected from disclosure by the attorney-client privilege, attorney
work-product doctrine, or other similar doctrine protecting them from disclosure. Citizens
may also request in writing that the Department inspect and/or collect samples at the BISES
Site to determine compliance with this Consent Decree and may request courtesy copies of
records or information requested or the results of sampling obtained by the Department
pursuant to this paragraph. The Department’s response to the Citizens’ request is not
subject to Part XVII. (Dispute Resolution) of this Consent Decree.
XIX. COMPLETION OF WORK AND TERMINATION
70.

Once Brunner completes all work under this Consent Decree, it shall submit a final written
report (“Final Report”) to the Department certifying that it has fully satisfied all Consent
Decree requirements. This Final Report shall indicate the case name and civil action
number, and shall contain the following signed statement:
“To the best of my knowledge, after thorough investigation in accordance with a
system designed to assure that qualified personnel properly gather and evaluate the
information submitted, I certify, based on my inquiry of the person or persons who
manage the system, or those persons directly responsible for gathering the
information, that Talen has completed the work required by and in accordance with
this Consent Decree, and that the information contained in or accompanying this
submission is true, accurate, and complete. I am aware that there are significant
penalties for submitting false information, including the possibility of fines and
imprisonment for knowing violations.”

71.

After consultation with Citizens and review of the Final Report submitted pursuant to this
Part, the Department will provide written Completion of Work acknowledgement to
Defendants if it agrees with Brunner’s determination that the work is complete. The
Department will use its best efforts to provide the Completion of Work acknowledgement
35

 FINAL
within 30 days of receipt of Brunner’s Final Report.

Such acknowledgement shall

thereafter relieve Defendants of any further requirements under this Consent Decree;
provided, however, that nothing herein shall relieve the Defendants from their duty or
obligation to comply with applicable federal, state or local law, regulation, applicable
permits, closure plans, and sampling and analysis plans (whether in effect at the time of
entry of this Consent Decree, or thereafter).
72.

If the Department determines that any portion of the work has not been completed in
accordance with this Consent Decree, the Department will notify Defendants in writing
and provide a copy of such notification to Citizens of the activities and steps that must be
undertaken to complete the remaining portion of the work. Upon completion of the
activities set forth in the Department’s notification, Brunner shall submit a Revised Final
Report pursuant to this Part, including a revised certification, for the completion of the
work.

73.

Should Citizens or Defendants disagree with the Department’s determination regarding
completion of the work, the disagreeing party shall invoke Dispute Resolution pursuant to
Part XVII. of this Consent Decree within 21 working days of receipt of the Department’s
determination.

74.

After the Department has issued a Completion of Work acknowledgement, and upon
payment of any and all penalties or costs that are due pursuant to this Consent Decree, the
Parties may move this Court to jointly terminate this Consent Decree based on their
representation that all requirements have been satisfied.

In the alternative, if the

Department fails to issue the Completion of Work acknowledgement within 30 days of
Brunner’s submittal, Brunner may move this Court, on notice to the Parties, to terminate

36

 FINAL
this Consent Decree. The Court may order such termination after conducting such inquiry
as it deems appropriate.
XX.
75.

COSTS

Attorney’s Fees and Costs. The Citizens agree not to file a petition seeking their attorneys’
fees, expenses and other costs in the prosecution or defense of this matter, this Consent
Decree or any related matters, including without limitation fees, expenses or costs related
to the appeal filed in Lower Susquehanna Riverkeeper Association et.al v. DEP and
Brunner Island, LLC, EHB Docket No. 2018-091-L, file reviews, and settlement
discussions pertaining to this matter or any related matters.
XXI. NOTICES

76.

Notification to Parties
(a)

Notification Requirements. Whenever this Consent Decree requires submittal of a
plan or other deliverable to the Department, or correspondence related thereto,
Brunner agrees to provide Citizens a timely electronic copy. All correspondence
and deliverables under this Consent Decree shall be directed to the individuals
listed below.

(b)

The Parties agree to notify the other Parties as soon as practicable whenever there
is a change in a contact person’s name, address, or other pertinent information. All
correspondence and deliverables, including notifications, submitted to or from
Defendants, Citizens, or the Department, shall be deemed submitted on the date it
is electronically submitted. Recognizing the Parties prefer electronic submissions,
if a party chooses to submit hard copies, the submittal shall be by first class mail
and the submittal date shall be the date such hard copy is postmarked. Brunner
shall maintain records of each correspondence and deliverable sent to Citizens and
37

 FINAL
the Department, or from Citizens or the Department, for the duration of the Consent
Decree.
Copies shall be sent to Citizens:
Mary E. Greene
Deputy Director
Environmental Integrity Project
1000 Vermont Avenue NW, Ste. 1100
Washington, DC 20005
(202) 263-4449
mgreene@environmentalintegrity.org
Copies shall be sent to Defendants:
John Forbes
Plant Manager Brunner Island
1400 Wago Road, PO Box 221
York Haven, PA 17347
(717) 266-7510
John.Forbes@talenenergy.com

AND
Thomas Weissinger
Sr. Director, Environmental
Talen Energy
1005 Brandon Shores Road, Ste. 100
Baltimore, MD 21226
(410) 507-2109
Thomas.Weissinger@talenenergy.com
Copies shall be sent to the Department:
Maria D. Bebenek, P.E.
Clean Water Program Manager
Department of Environmental Protection
Southcentral Regional Office
909 Elmerton Avenue
Harrisburg, PA 17110
(717) 705-4795
mbebenek@pa.gov

38

 FINAL
AND
Anthony L. Rathfon
Waste Management Program Manager
Department of Environmental Protection
Southcentral Regional Office
909 Elmerton Avenue
Harrisburg, PA 17110
(717) 705-4860
arathfon@pa.gov
(a)

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 care of the Office of Chief Counsel, except as otherwise
provided below.

(b)

Certification to Accompany Defendants Submittals. Material reports and those
documents which are required to be submitted with a certification under applicable
law and which are submitted pursuant to this Consent Decree by Brunner shall be
signed by a duly authorized representative who has personal knowledge of each
plan’s contents and shall include the following certification:
“I certify under penalty of law, as provided by 18 Pa.C.S. § 4904 that this
information was prepared under my direction or supervision in accordance with
a system designed to ensure that qualified personnel properly gather and
evaluate the information submitted. Based upon my directions and my inquiry
of the person(s) who manage the system, or person(s) directly responsible for
gathering the information, the information submitted is, to the best of my
knowledge and belief, true, accurate and complete. I am aware that there are
significant penalties for submitting false information, including the possibility
of fines and imprisonment for knowing violations.”
XXII. TRANSFER OF SITE

77.

Transfer of Site.
(a)

The duties and obligations under this Consent Decree shall not be modified,
diminished, terminated or otherwise altered by the transfer of any legal or equitable

39

 FINAL
interest in the BISES and/or the BISES Site or any part thereof.
(b)

If Brunner intends to transfer any legal or equitable interest in the BISES and/or
BISES Site, Brunner shall serve a copy of this Consent Decree upon the prospective
transferee of the legal and equitable interest at least 30 days prior to the
contemplated transfer and shall simultaneously inform the Department’s
Southcentral Regional Office of such intent.
XXIII. EFFECTIVE DATE

78.

Effective Date. This Consent Decree shall become effective upon the Court’s entry. Where
indicated, time frames for obligations under this Consent Decree begin to run prior to the
effective date, i.e., upon lodging or upon a specified date.
XXIV. SIGNATORIES

79.

Authority to Sign Consent Decree. Each undersigned representative of the Citizens,
Defendants and the Department certifies that they are fully authorized to enter into the
terms and conditions of this Consent Decree and to execute and legally bind that entity to
this document.

XXV.
80.

SEVERABILITY, INTEGRATION, EXECUTION, AND MODIFICATIONS

Severability. The paragraphs of this Consent Decree shall be severable and should any part
hereof be declared invalid or unenforceable, the remainder shall continue in full force and
effect between the Parties.

81.

This Consent Decree shall constitute the entire, final, complete, and exclusive agreement
and understanding among the Parties with respect to the settlement embodied in this
Consent Decree and supersedes all prior agreements and understandings, whether oral or
written, concerning the settlement embodied herein, other than submissions that are
subsequently submitted and approved pursuant to this Consent Decree. No prior or

40

 FINAL
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. A modification to the terms and conditions of this Consent Decree
can be made without approval of the Court but only to the extent such modification is made
in writing and is signed in response to certain concerns raised by all Parties. Any such
modification shall be enforceable under this Consent Decree on the date all Parties have
signed.
82.

Modifications. Modifications to this Consent Decree may be signed in counterparts, each
of which shall be deemed to be an original and all of which together shall constitute one
and the same instrument and its validity shall not be challenged on that basis.

83.

Execution of Consent Decree. This Consent Decree may be signed in counterparts, each of
which shall be deemed to be an original and all of which together shall constitute one and
the same instrument.
XXVI. FINAL JUDGMENT AND WITHDRAWAL OF APPEAL

84.

Upon approval and entry of this Consent Decree by the Court, this Consent Decree shall
constitute a final judgment of the Court as to the Citizens, Defendants and the Department.
The Department reserves the right to withdraw from this Consent Decree until the date that
the Court enters this Consent Decree.

85.

If, for any reason, the Court should decline to approve this Consent Decree in the form
presented, this agreement is voidable at the sole discretion of any party and the terms of
the agreement may not be used as evidence in any litigation between the Parties.

86.

Within 14 days of this Court’s entry of this Consent Decree, Citizens shall withdraw, with
prejudice, the appeal filed with the Environmental Hearing Board, in the case captioned

41

 FINAL
Lower Susquehanna Riverkeeper et.al v. DEP and Brunner Island, LLC, EHB Docket No.
2018-091-L.

THE UNDERSIGNED Parties enter into this Consent Decree and submit it to this Court
for approval and entry,

IT IS SO ORDERED:

Dated this ____ day of _________________. 2019

_______________________________________
J.

42

 FINAL
ON BEHALF OF THE PENNSYLVANIA DEPARTMENT OF ENVIRONMENTAL
PROTECTION:

_______________________
Date

_________________________________
JANNA E. WILLIAMS
PA Supreme Court I.D. No. 319584
Office of Chief Counsel
PA Department of Environmental Protection
909 Elmerton Avenue
Harrisburg, PA 17110-8200
Phone: 717-783-8301
jannwillia@pa.gov

_______________________
Date

_________________________________
MARIA D.BEBENEK, P.E.
Environmental Program Manager, Clean Water
Program
Southcentral Regional Office
PA Department of Environmental Protection
909 Elmerton Avenue
Harrisburg, PA 17110-8200
Phone: 717-705-4795
mbebenek@pa.gov

_______________________
Date

________________________________
ANTHONY L. RATHFON
Environmental Program Manager, Waste
Management Program
Southcentral Regional Office
PA Department of Environmental Protection
909 Elmerton Avenue
Harrisburg, PA 17110-8200
Phone: 717-705-4860
arathfon@pa.gov

43

 FINAL

ON BEHALF OF THE LOWER SUSQUEHANNA RIVERKEEPER ASSOCIATION,
WATERKEEPER ALLIANCE, AND PENNENVIRONMENT:

_______________________________
Mary E. Greene
Deputy Director
Environmental Integrity Project
1000 Vermont Ave NW, Suite 1100
Washington, DC 20005

ON BEHALF OF TALEN ENERGY CORPORATION:

__________________________________
Debra L. Raggio
Senior Vice President/Regulatory & External
Affairs Counsel
117 Oronoco Street
Alexandria, VA 22314

ON BEHALF OF BRUNNER ISLAND, LLC:

__________________________________
Debra L. Raggio
Senior Vice President/Regulatory & External
Affairs Counsel
117 Oronoco Street
Alexandria, VA 22314

44