The Environmental Hearing Board Rules In Favor of CCJ and Sierra Club

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On Tuesday, August 15, 2017, the Pennsylvania Environmental Hearing Board (EHB) unanimously delivered a major victory to Center for Coalfield Justice, Sierra Club and their members in a consolidated appeal of two longwall mining permits for the Bailey Coal Mine: Permit Revision No. 180 and Permit Revision No. 189. The EHB’s decision sets important precedent for streams in Pennsylvania that may be impacted by longwall coal mining operations

The Permit Revisions allowed Consol Energy to expand longwall mining operations at the Bailey Mine to an area located to the east of Ryerson Station State Park. Permit Revision No. 180 authorized longwall mining in the 1L through 5L panels, but did not authorize longwall mining beneath Polen Run and Kent Run. Permit Revision No. 189 authorized longwall mining beneath Polen Run in the 1L and 2L panels of the Bailey Lower East Expansion. It also authorized post-mining stream channel lining to address predicted subsidence-induced flow loss.

The Department of Environmental Protection (“DEP”) and Consol predicted that longwall mining would cause flow loss and pooling in certain overlying streams.The DEP determined that the extent and severity of the predicted subsidence-induced stream impacts would require post-mining stream remediation including streambed lining, streambed grouting, and gate cutting.  We presented our case before the EHB in August 2016.

While waiting for a final decision from the Judges, Senators Scarnati and Yaw introduced SB 624 in an attempt to retroactively defeat our legal arguments. SB 624 was amended in the House with support from the DEP. The amended version of SB 624 is now known as Act 32 of 2017. These amendments to the Bituminous Mine Subsidence and Land Conservation Act (“Mine Subsidence Act”)  were a transparent attempt to substitute the Legislature’s judgment for that of the EHB’s in the Consolidated Appeal.

However, the EHB refused to apply Act 32 of 2017 to the Consolidated Appeal. The Judges agreed that Act 32 constitutes a change to the approved Pennsylvania Mining Program and requires approval from the Federal Office of Surface Mining (“OSM”). Without OSM approval, the amendments to the Mine Subsidence Act are not effective. Just as importantly, the EHB explained that it would have reached the same conclusion even if Act 32 had applied. As a result, the EHB’s decision cannot be invalidated should OSM approve the amendments in the future.

In the 71-page opinion, the EHB ruled in favor of CCJ and Sierra Club and held that issuance of Permit Revision No. 189 was in violation of the Clean Streams Law, the Mine Subsidence Act and associated regulations. The EHB explained:

"When the Department anticipates that the impacts from longwall mining are going to be so extensive that the only way to “fix” the anticipated damage to the stream is to essentially destroy the existing stream channel and streambanks and rebuild it from scratch, the Department’s decision to issue Permit Revision No. 189 is unreasonable and contrary to the law.” 

In addition, the EHB found that the Department’s action granting Permit Revision No. 189 violated Article I, Section 27 of the Pennsylvania Constitution. The Board acknowledged that Clean Streams Law, the Mine Subsidence Act and their regulations are relevant to the protection of public natural resources like the streams within and around Ryerson Station State Park. The Board also recognized that compliance with a state statute does not always equate to compliance with Article I, Section 27. Department actions taken under the authority of a statute must still be measured against the constitutional requirements of Article I, Section 27. However, in this case, no further analysis was required.

“At a minimum, a Department permitting action that is not lawful under the statutes and regulation in place to protect waters of the Commonwealth, cannot be said to meet the Department’s trustee responsibility under Article I, Section 27 and is clearly a state action taken contrary to the rights of citizens to pure water.”

While this decision did not prevent harm to Polen Run above that section of the mine, it sets an important precedent for the future. The immediate impact is to preclude the Department from authorizing longwall mining beneath the portion of Polen Run that flows through Ryerson Station State Park.

The DEP already determined that other, more minor forms of post-mining stream remediation would not restore the stream and that stream channel lining would be necessary. Since it is not reasonable, lawful or constitutional “to allow longwall mining to take place when the Department determines prior to issuing the permit that the impacts to a stream will rise to a level that the necessary restoration will require this level of disruption to the existing stream,” the DEP cannot approve Consol’s pending application to longwall mine beneath Polen Run in the 4L and 5L panels.

Over three years ago, in April 2014, Consol voluntarily revised its mining plan and represented to the DEP that it could and would conduct development mining (not longwall mining) beneath Polen Run in the 4L and 5L panels, which is located within Ryerson Station State Park. Earlier this year, Consol submitted an application to instead longwall mine beneath this portion of the stream. Should the DEP deny Consol’s pending application, Consol could continue to operate in accordance with their mining plan that was approved in 2014. As a result, denial of its application to longwall mine beneath Polen Run within the Park would not justify a reduction in workforce.

The EHB upheld the DEP’s issuance of Permit Revision No. 180 citing insufficient evidence to conclude that the predicted and observed impacts caused or would cause “impermissible impairment” or “unreasonable degradation” of the streams within the permit area. Still, the EHB provided valuable clarification about the protections afforded to Pennsylvania streams that may be impacted by longwall coal mining.

For over a decade, the DEP has focused almost exclusively on the adequacy of post-mining mitigation plans rather than protecting streams from significant mining impacts.  Instead the DEP relied upon post-mining stream mitigation plans to approve and excuse predicted mining damage to streams in advance. We argued that this emphasis on post-mining mitigation plans and monitoring requirements misses the point. The EHB largely agreed.

More specifically, we argued that the law allows for some amount of environmental impact because what is important is not that absolutely no environmental impact occurs, but that the impact does not impair the stream’s protected uses (e.g. aquatic life). In other words, a company can mine and in doing so remove some flow from a stream so long as it does not remove so much flow that the stream no longer supports aquatic life. The EHB agreed that

“The fundamental question in this case is whether the impacts from subsidence anticipated from and caused by Consol’s longwall mining in the [Bailey Lower East Expansion] will impair or have impaired the streams in the area. Impairment clearly violates the Clean Streams Law and its regulations and if the Department determined that longwall mining will impair the streams in the [Bailey Lower East Expansion], it should deny the permit revisions. It also violated the Mine Subsidence Act and its regulations.”

Consistent with this impairment framework, the EHB acknowledged the mining-induced impacts observed in undermined streams at the Bailey Lower East Expansion and discussed the use of post-mining streambed grouting to address flow loss and the use of gate cutting to mitigate subsidence-induced pooling. With respect to gate cutting, the EHB expressed concern “because the streambed is excavated in places to lower the stream gradient and re-establish flow. Extensive excavation of the streambed can certainly impact a stream and impair its uses because of the impact it will have on the organisms in the stream.” This means the DEP must consider the scope and duration of post-mining mitigation work. A promise to perform repairs may not be enough if stream uses will be impaired.   

Although the EHB was not convinced that the streams under which Permit Revision No. 180 authorized mining were likely to or did suffer impermissible impairment, the EHB recognized that

“Even this level of impact, which necessitates the implementation of minor forms of stream mitigation, could result in stream impairment if the time or amount of work involved extended beyond what was demonstrated in this case.”

While there is still work to be done, the Board’s opinion sets forth important guidance for evaluating longwall mining applications in the future and provides stronger protection for Pennsylvania streams.