Ryerson

12th Annual DRYerson Festival a Huge Success!

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We celebrated our 12th Annual DRYerson Festival on Saturday, June 30, 2018 at Ryerson Station State Park. It was a hot day, but that did not prevent over 60 people from joining us for the afternoon, celebrating a place we love.

Our day began with a pre-Festival hike, thanks to our friends at the Sierra Club, which allowed participants to see the places we have worked to protect throughout the years. Over the course of the day, we heard music from Bree Otto, a local musician from Adah, PA, who played an acoustic set of popular songs across a variety of genres. Follow her on social media to see where she’s playing next! While she played, representatives from DCNR were a short stroll away in a separate pavilion, showcasing plans for updates to Ryerson Station State Park, answering questions, and taking input directly from the community.

Many people took advantage of Our Children Our Earth’s presence at the Festival: they were selling environmentally-friendly, plastic-free goods, like portable utensil sets that are designed to replace single-use plastic ones at ballparks or music festivals or concerts. They also provided all of the bamboo plates and utensils that were used at the DRYerson Festival as part of their “Plates To Go” service: they rent out their plates and handle the cleanup so that we can avoid wasteful, unnecessary plastic. This is something CCJ will continue to do at our events, and we hope this will inspire others - individuals and organizations - to make whatever changes they can so that we can collectively live our values.

A brief word of thanks is insufficient to address the hard work that so many contributed to this event: CCJ staff and board could not have held such a successful event without the help of our volunteers. We also greatly appreciate the support from our sponsors , Sierra Club, National Resources Defense Council (NRDC), Pittsburgh United, One Pennsylvania, Mountain Watershed Association, Harry Enstrom Chapter of the Izaak Walton League, Monongahela Friends Group, Conservation Voters of PA, and Center for Popular Democracy.

Community Comes Together to Heal and Rally Forward from Mining Impacts to Polen Run in the Park

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Last month the Pennsylvania Environmental Hearing Board (“EHB”) denied the Center for Coalfield Justice’s and Sierra Club’s petition for supersedeas to protect Polen Run within Ryerson Station Park from significant harm caused by longwall mining. We are, of course, very disappointed by the decision. The following weekend, our community came together to remember Ryerson as it once was and rally together to continue to invest in the Park moving forward.

A supersedeas is an extraordinary remedy and will not be granted absent a clear demonstration of need. The burden of proving that a supersedeas should be granted falls squarely on the petitioner - CCJ and Sierra Club in this case. It is important to remember that a ruling on a supersedeas is merely a prediction, based on limited evidence and a shortened time frame for consideration, of who is likely to ultimately prevail. In the end, the determination of whether or not to grant a petition for supersedeas is at the discretion of the EHB based on a balancing of the factors it considers in reaching that decision.

The EHB agreed with us that Polen Run within Ryerson Station State Park was likely to suffer an impact from longwall mining. However, in the end, the Board found that it was a “close call” and explained, “given the high burden that must be met in order to grant a supersedeas, where the evidence comes down to a close call we cannot find that the burden has been met.” In its decision, the EHB acknowledged the practical burdens imposed on CCJ and Sierra Club in a supersedeas hearing where we have not had the benefit of discovery and where we are required to prepare our case under significant time constraints. The Board further explained: “We note, of course, that if this case proceeds to a hearing on the merits additional evidence may be available regarding the impact of mining on Polen Run.

Finally, the EHB acknowledged the importance of our permit appeal when it stated:

“We acknowledge the important public service undertaken by the Appellants in appealing the issuance of Permit Revision 210 and the previous permit revisions that involve mining under Ryerson Station State Park. Ryerson Station State Park is the only state park in Greene County, and, pursuant to Article I, § 27, the public has a right to the preservation of its natural, scenic, historic and esthetic values...Appellants’ appeal raises important public issues and ensures that the Department fulfills its duties under Article I, § 27. Those duties and obligations also extend to this Board and to the appellate courts.”

We will be monitoring the impacts of longwall mining to the streams throughout the rest of the year and plan to continue our appeal before the Environmental Hearing Board. If you’d like to help us monitor Ryerson Station State Park while mining is ongoing, please contact us.   


Our community has been sacrificing their water, homes, and public resources to longwall mining around Ryerson for over a decade. We are grateful and encouraged by the overwhelming support we have received and the continued interest in defending our rights to clean water and healthy communities.    

Please contact us if you’d like to know more about the revisioning of Ryerson Station State Park or are interested in volunteering for our DRYerson Festival on June 30th.

Judge Allows Mining Under Polen Run Inside Ryerson Station State Park While Appeal is Being Heard

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Greene County, PA--The Pennsylvania Environmental Hearing Board (EHB) filed an order today denying a petition for supersedeas filed by Center for Coalfield Justice (CCJ) and Sierra Club. The petition sought to protect Polen Run within Ryerson Station State Park from significant harm caused by longwall mining. The EHB’s denial of our petition allows Consol Pennsylvania Coal Company (Consol) to longwall mine beneath Polen Run inside Ryerson Station State Park while an appeal filed by the Sierra Club and CCJ is being considered. The appeal comes after the Pennsylvania Department of Environmental Protection (DEP) issued a permit to Consol Pennsylvania Coal Company (Consol) last month allowing the company to perform extensive and destructive longwall mining beneath the surface of Polen Run which is within the Park.

This is the fourth time the groups have been forced to file an appeal of permits for Consol’s Bailey Mine East Expansion. Back in 2017, the EHB forbade Consol from mining within 100 feet of Kent Run inside Ryerson Station State Park while it heard an appeal of the company’s controversial permit to expand its Bailey Mine due to Consol and DEP predicting significant damage and flow loss in the stream. 

In response Veronica Coptis, Executive Director of Center for Coalfield Justice and resident of Greene County said the following:

“The EHB’s decision to deny our petition to prevent longwall mining under Polen Run within Ryerson Station State Park is disappointing. Families in our region deserve to enjoy fishing and other recreational activities in and around Polen Run as they’ve done for generations. We are continuing in our efforts in the reinvestment and rebuilding of Ryerson Station State Park.”   

Center for Coalfield Justice, Sierra Club File Appeal of Mine Threatening State Park Again

 Confluence of Polen Run with North Fork Dunkard Fork above the Bailey Mine 5L Panel.

Confluence of Polen Run with North Fork Dunkard Fork above the Bailey Mine 5L Panel.

Greene County, PA--The Center for Coalfield Justice (CCJ) and the Sierra Club filed an appeal of a permit issued by Pennsylvania Department of Environmental Protection (DEP) that would allow Consol Pennsylvania Coal Company (Consol) to mine underneath another stream within Ryerson Station State Park despite the anticipated damage. This is the fourth time the groups have been forced to file an appeal of permits for Consol’s Bailey Mine East Expansion.

In the meantime, the groups are asking the Environmental Hearing Board (EHB) to halt mining in the park while the appeal is being considered. Back in 2017, the EHB forbade Consol from mining within 100 feet of Kent Run inside Ryerson Station State Park while it heard an appeal of the company’s controversial permit to expand its Bailey Mine due to Consol and DEP predicting significant damage, notably subsidence and flow loss, to the stream.

“It is unconscionable that the only state park in an environmental justice community is being sacrificed for the temporary benefit of this one company, yet again,” Veronica Coptis, Executive Director of Center for Coalfield Justice and resident of Greene County said. “Consol has already destroyed much of Polen Run outside of the park with previous mining activity. We are asking the Environmental Hearing Board to prevent that same damage inside Ryerson Station State Park.”

Last August, the EHB ruled in favor of the two groups on a similar appeal. The court said that it was a violation of the Pennsylvania Constitution and Clean Streams Law for the DEP to issue a permit when the activity was predicted to result in significant stream damage or pollution. The EHB also ruled that it is not lawful or constitutional for the DEP to authorize stream damage even if the company commits to “restoring” a stream by completely reconstructing it. In spite of that ruling, DEP has now approved a new permit amendment under the same stream, Polen Run which had previously denied Consol’s request to mine beneath this portion of Polen Run because it concluded that longwall mining would cause significant damage and the proposed mitigation technique, streambed grouting, would not be successful in restoring the stream. That decision followed a review period of approximately seven years from the time Consol submitted its application.  

“Yet again, our state government has failed to protect an environmental justice community, putting Consol’s profits ahead of the last remaining water resources in Ryerson,” Joanne Kilgour, Director of the Sierra Club Pennsylvania Chapter said. “Consol received a permit that is practically identical to one the EHB overturned for an upstream section of the mine last summer. How many more times will DEP shift its duty of protecting communities and the environment onto the very people it is supposed to serve?”

Since longwall mining at the Bailey Mine destroyed Duke Lake 13  years ago, conservationists argue these streams are some of the most important remaining water features and fishing spots in the park. The activity authorized by this new permit will likely result in flow loss that would prevent aquatic life, like fish, salamanders, frogs, and macroinvertebrates (such as mayflies, dragonflies, and other insects that live in streams) from surviving in the stream. Thousands of fish have died from mining at Bailey Mine Complex in the past and thousands of future memories and experiences have been stolen from visitors of Ryerson Station State Park.

Bailey Mine Litigation Settlement and Commonwealth Court Appeal Update

 Kent Run at Ryerson Station State Park. (Photo credit: Sarah Winner)

Kent Run at Ryerson Station State Park. (Photo credit: Sarah Winner)

A Stipulation of Settlement Entered in Permit Revision 204 Litigation

Permit Revision 204 authorized longwall mining beneath Kent Run and Polen Run in the 3L panel of the Bailey East Expansion. In January 2017 we successfully petitioned for a supersedeas that prohibited Consol from conducting longwall mining beneath Kent Run in the 3L panel, located within the park, while the appeal is pending.

As part of Permit Revision 209, the DEP approved a revised mining map submitted by Consol that shows development mining only beneath Kent Run. As a result, on January 5, 2018, we entered into a stipulation of settlement with the DEP and Consol. In the settlement, the parties agreed to quit fighting now and also agreed that we can pick the fight back up again if the DEP approves longwall mining beneath Kent Run in the future.

The settlement agreement recognizes and makes clear that Consol no longer has permission to conduct longwall mining under Kent Run in the 3L panel, which is located within Ryerson Station State Park. It also states that any future authorization of longwall mining would require a permit revision subject to public notice and comment. In other words, if Consol ever wants to return to the 3L panel and longwall mine beneath Kent Run, it will be required to go through the permit application process again.

Any future authorization of longwall mining beneath Kent Run in the 3L panel would be a final DEP action that is appealable to the Environmental Hearing Board (EHB). The agreement preserves our ability to raise any factual and legal issues that we identified in the Permit Revision 204 Appeal, including issues related to post-mining stream mitigation in Kent Run, in an appeal of any future permit revision which reauthorizes longwall mining.

Consol Discontinued its Appeal of EHB Decision on Permit Revision 180 and 189

On August 15, 2017, the Environmental Hearing Board (EHB) delivered a major victory to CCJ, Sierra Club and their members in a consolidated appeal of two longwall mining permits for the Bailey Mine: Permit Revision No. 180 and Permit Revision No. 189. Shortly thereafter, Consol appealed the EHB’s decision to the Pennsylvania Commonwealth Court.

On January 9, 2018, Consol discontinued its appeal of the EHB’s decision. That decision, which sets forth important guidance for evaluating longwall mining applications in the future and provides stronger protection for Pennsylvania streams, cannot be overturned.  

Bailey Mine Permitting Update

On Friday, November 3, 2017, the Department of Environmental Protection (“DEP”) issued Permit Revision No. 209 to Coal Mining Activity Permit 30841316. Permit Revision No. 209 authorizes Consol to conduct longwall mining in the 6L – 8L panels of the Bailey Mine.  

There has been some confusion about whether Permit Revision No. 209 authorizes longwall mining beneath Polen Run in the 4L and 5L panels of the Bailey Mine. It does not. Instead, it authorizes longwall mining in three panels (6L-8L) that are located in an area south-east of Ryerson Station State Park.   

Consol is currently longwall mining in the 5L panel of the Bailey Mine. In January we successfully petitioned for a supersedeas that prohibited Consol from conducting longwall mining beneath Kent Run in the 3L panel, located within the park, while the appeal is pending. Then, in August, CCJ and Sierra Club received a favorable decision in their consolidated appeal of Permit Revision Nos. 180 and 189.

Due to this decision, Consol had to amend their pending permit for authorization to mine under Polen run, which is within the state park, for the 4L and 5L panels. This permit is still pending and we are prepared to take any action to protect the stream.

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.

Environmental Hearing Board Overturns Permit for Destructive Mining Upstream of Ryerson Station State Park

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Greene County, PA--The Pennsylvania Environmental Hearing Board (EHB) rejected a revised underground longwall mining permit issued by the state’s Department of Environmental Protection (DEP) in 2015 that allowed Consol Pennsylvania Coal Company (Consol) to cause extensive damage to a stream called Polen Run, which flows into Ryerson Station Station State Park.

“We greatly appreciate all of the time that the Board spent on this matter,” Sarah Winner, who represented Center for Coalfield Justice and Sierra Club in the appeals, said. “The Board’s decision provides important clarification about the protections afforded to Pennsylvania streams in the context of longwall coal mining.”

The EHB concurred with two community groups, the Center for Coalfield Justice (CCJ) and the Sierra Club, that Pennsylvania’s Clean Streams Law and Article I, Section 27 of the Pennsylvania Constitution does not allow the DEP to permit mining that is predicted to damage a stream so severely that the only way to “fix” the damage is to construct a new stream in its place.

“We’re thrilled that the EHB has agreed with us that it is illegal to allow a company to destroy streams for the sake of increasing profit. This ruling has put the industry and the DEP on notice that it must do a better job of developing mining plans to protect streams,” Veronica Coptis at the Center for Coalfield Justice said. “We are thankful to the hundreds of area residents who contributed to our successful efforts and remain committed to protecting the streams within Ryerson Station State Park.”

"The EHB set a precedent today that it will protect streams throughout Southwestern Pennsylvania. This is a victory for the rule of law and for local folks who have had to suffer the consequences of irresponsible mining practices for too long. Time and again mining companies have proven that putting a stream back together after breaking it is easier said than done,” Tom Schuster, Senior Campaign Representative for Pennsylvania at the Sierra Club said. “Now the industry will have to comply with the environmental laws and Article I, Section 27 of the Pennsylvania Constitution, and prevent extensive damage in the first place. They can no longer sacrifice community resources for corporate greed.”

CCJ and Sierra Club were also represented by Fair Shake Environmental Legal Services.

 

Make a donation today to support the ongoing fight for streams in and around Ryerson Station State Park.  

Share your stories!

 CCJ Staff and Board members enjoy a water balloon fight at Ryerson

CCJ Staff and Board members enjoy a water balloon fight at Ryerson

Governor Tom Wolf and our state legislators have cut protections for streams in Ryerson Station State Park, but the fight to protect the Park is not over. We will work to prevent Consol from profiting by destroying our only state park in Greene County.  We love Ryerson, and it belongs to all of us - not an outside corporation. Ryerson has impacted so many of our lives and inspired so many stories we look back on with fondness.

We want to hear those stories. Tell us your favorite memory from Ryerson, or let us know what activities you do there. What does the Park mean to you?

CCJ will compile these stories into one place to be shared with our community to remind ourselves that we’re all united in the same cause and with local policymakers to remind them that we are not going anywhere.

To share your stories, use this link: https://actionnetwork.org/forms/ryseron-stories 

Send us a photo if you can by emailing smartik@coalfieldjustice.org with your name in the title.

Legal Update on Protecting Streams in Ryerson

Our permit appeals before the Environmental Hearing Board are moving forward. The most recent updates are below.  

Permit Revision No. 204

Permit Revision No. 204 authorizing longwall mining beneath Kent Run and Polen Run in the 3L panel of the Bailey Lower East Expansion. This portion of Kent Run flows within Ryerson Station State Park. In January we successfully petitioned for a supersedeas that prohibited Consol from conducting longwall mining beneath Kent Run while the appeal is pending.  

On June 9, 2017, Consol filed a Motion to Dismiss in our appeal of Permit Revision No. 204 before the Environmental Hearing Board. On June 23, 2017, the Department of Environmental Protection joined Consol’s motion.  

On July 10, 2017, CCJ and Sierra Club filed a response to Consol’s motion, a response to the Department’s motion, and a memorandum of law in opposition to the motions.

On Friday, July 28, 2017, Judge Beckman issued an opinion and order denying the motions to dismiss.

On Wednesday, August 2, 2017 the Pennsylvania Commonwealth Court dismissed Consol's appeal of the Environmental Hearing Board's supersedes order. 

Consolidated Appeal of Permit Revisions 180 and 189

Permit Revisions 180 authorized longwall mining at the Bailey Lower East Expansion but did not authorize longwall mining beneath two streams, Kent Run and Polen Run. Permit Revision No. 189 authorized longwall mining and post-mining streambed lining in Polen Run above the 1L and 2L panels of the Bailey Lower East Expansion. CCJ and Sierra Club appealed both permits to the Environmental Hearing Board. The Board held a hearing on the merits of our appeals in August 2016.  

On July 12, 2017, CCJ and Sierra Club filed a supplemental brief addressing the recent Pennsylvania Supreme Court decision in Pennsylvania Environmental Defense Foundation v. Commonwealth of Pennsylvania (10 MAP 2015) including the impact of that decision to our Article I, Section 27 claim. The Pennsylvania Supreme Court held that the text of the Environmental Rights Amendment to the Pennsylvania Constitution (Article I, Section 27) and the underlying principles of Pennsylvania trust law provide the appropriate standard for judicial review when examining challenges to the constitutionality of Commonwealth agency actions.

On July 21, 2017, Governor Wolf allowed Senate Bill No. 624 to pass into law. The amendments to the Mine Subsidence Act are now known as Act 32 of 2017. On August 8, 2017, CCJ and Sierra Club intend to file another supplemental brief addressing the impact of the amendments to our pending permit appeals.

We anticipate a final decision this summer.