niedbala@observer-reporter.com

WAYNESBURG - Foundation Coal has asked Greene County Court to exempt the company's mining operations from provisions of the Wayne Township noise ordinance.

Foundation Pennsylvania Coal Co., Pennsylvania Land Holdings Corp., Pennsylvania Services Corp. and Cumberland Coal Resources LP filed the action for declaratory judgment Thursday with the court.

Foundation Coal claims the ordinance will prevent its Cumberland Mine from mining coal in the township.

It maintains surface mining activities including airshafts, portals and core drilling, all necessary for its underground mine, are regulated by the state Department of Environmental Protection under the Surface Mining Conservation and Reclamation Act.

Sections of the mining law "preclude Wayne Township, as a matter of law, from regulating surface mining activities ..." the company said.

"If the township were to enjoin Cumberland mine's ventilation or drainage activities, Cumberland would be prevented from mining the Pittsburgh seam of coal, which mining is presently authorized by Cumberland's validly issued DEP permit," it said.

Foundation Coal also claims the township ordinance is discriminatory. During consideration of the ordinance, the township recognized other private and commercial activities will violate the noise levels set forth in the ordinance, it said.

The township "purposely" implemented noise level exceptions pertaining to private and commercial activities, the company said. The exceptions make the ordinance inapplicable to most private and commercial activities, "except for surface mining activities that Wayne Township knows must occur within its borders," the company said.

The company asks the court to declare that surface mining activities are exclusively regulated by DEP, the ordinance discriminates against surface mining activities and the township has no authority to enforce the ordinance against the company's surface mining activities.

Township Supervisor Tim Chapman, reached Thursday afternoon, said the supervisors had not yet seen the company's court filing and could not comment.

The supervisors had prepared the ordinance in response to residents' complaints. It was adopted at a meeting Jan. 24. Under the ordinance, noise from machinery or other sources cannot exceed 45 decibels in the day and 40 decibels at night.

The ordinance exempted farm equipment, lawn mowers, air conditioning units, construction equipment for short-term projects and noise from parties and other events that require a permit.

At that Jan. 24 meeting, representatives of Foundation Coal and Consol Energy as well as CNX Gas had argued the ordinance set noise levels so low that it may be impossible for them to do business in the township.

They asked the township to adopt an ordinance similar to those in place in Franklin and Whiteley townships. The law in Franklin is structured differently but has a general limit of 60 decibels.

The supervisors had hired an acoustical engineer, William Thornton, to help them develop the ordinance. They said they were assured by Thornton technology is available to allow the company to bring noise levels down to the required levels.

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