PA Environment Digest Blog: PEC Expresses Opposition To Bill Retroactively Changing Protection For Streams Affected By Deep Coal Mining

Friday, May 19, 2017

PEC Expresses Opposition To Bill Retroactively Changing Protection For Streams Affected By Deep Coal Mining

The PA Environmental Council Thursday wrote a letter to the members of the Senate Environmental Resources and Energy Committee expressing its opposition to Senate Bill 624 (Scarnati-R-Jefferson) that would retroactively change the rules for protecting streams affected by underground coal mining under Act 54.

The bill was introduced to influence an appeal now pending before the Environmental Hearing Board of an underground coal mining permit allowing Consol to longwall mine under streams in and around Ryerson Station State Park in Greene County. (EHB Docket No. 2014-072-B)
On Friday, the Senate Environmental Resources and Energy Committee announced it has scheduled a meeting on May 22 to consider Senate Bill 624. Click Here to learn more.

The PA Environmental Council was a party to the extensive stakeholder group of industry, environmental and community groups that developed Act 54 that was passed by the General Assembly in 1994.

PEC noted Act 54 was “intended to ensure that streams and other aquatic resources are protected from substantial or permanent damage. The 1994 amendments provided flexibility by allowing temporary, partial impacts, so long as an operator maintained surface water uses through mitigation and repair.”

However, PEC said, “Mining impacts to water resources have proven to be a significant issue; more than twenty years of study (required by Act 54) have demonstrated that deep mining results in long-lasting, potentially permanent, adverse impacts to surface waters despite planning and mitigation efforts.

“The most recent report, undertaken by the University of Pittsburgh and covering mining activity between 2008 to 2013, found that 40 percent of the streams undermined by deep coal mining (39 of 96 miles) suffered flow loss or pooling that had an adverse impact on aquatic life, pH, and conductivity in the streams.

“Further, 8 of 55 stream segments identified in a previous report had yet to recover from the impacts of mining, despite ongoing attempts at mitigation.

“Senate Bill 624 would weaken the protections intended by Act 54 and currently provided under state law, and substantially impede the opportunity to challenge the issuance of a mining permit with respect to potential water resource impacts before damages occur.

“To compound the issue, Senate Bill 624 would retroactively apply to “all permits issued under the act that were the subject of an appeal heard by the Environmental Hearing Board after June 30, 2016.”

“Retroactively applying a new standard to any action by a state agency involving a private company – particularly one that is already subject to administrative adjudication – is extraordinarily rare and raises further questions.

“State mining law has already been changed to accommodate the mining industry. Time and study have shown that there are significant, and likely permanent, damages to surface waters resulting from underground mining. Senate Bill 624 only creates the likelihood of even more consequential damages.

“This proposed legislation runs counter to the Clean Streams Law and Pennsylvania Constitution – if anything, protections under the law should be strengthened.

“Pennsylvania has an extraordinary pollution legacy from past mining practices, the cost of which is now borne by the public. Senate Bill 624 threatens to expand this legacy.”

The text of the letter follows--

Dear Senators:

On behalf of the Pennsylvania Environmental Council (PEC), I am writing to ask that you oppose Senate Bill 624. This legislation is a reaction to an order by the Environmental Hearing Board to limit part of a longwall mining permit due to potential adverse impacts to surface waters. The broader case, involving several permit appeals, is still pending before the Environmental Hearing Board.

Senate Bill 624 would allow the exemption of predicted, mining-induced impacts to surface water uses from existing protection requirements under state law.

This proposed exemption would alter a long-standing framework that was formulated by a group of mine operators, environmental groups, community representatives, and legislators in 1994 that advanced amendments to the state’s Bituminous Mine Subsidence and Land Conservation.

PEC was one of those stakeholders.

The amended law, commonly referred to as “Act 54”, was intended to ensure that streams and other aquatic resources are protected from substantial or permanent damage. The 1994 amendments provided flexibility by allowing temporary, partial impacts, so long as an operator maintained surface water uses through mitigation and repair.

Mining impacts to water resources have proven to be a significant issue; more than twenty years of study (required by Act 54) have demonstrated that deep mining results in long-lasting, potentially permanent, adverse impacts to surface waters despite planning and mitigation efforts.

The most recent report, undertaken by the University of Pittsburgh and covering mining activity between 2008 to 2013, found that 40 percent of the streams undermined by deep coal mining (39 of 96 miles) suffered flow loss or pooling that had an adverse impact on aquatic life, pH, and conductivity in the streams.

Further, 8 of 55 stream segments identified in a previous report had yet to recover from the impacts of mining, despite ongoing attempts at mitigation.

Senate Bill 624 would weaken the protections intended by Act 54 and currently provided under state law, and substantially impede the opportunity to challenge the issuance of a mining permit with respect to potential water resource impacts before damages occur.

To compound the issue, Senate Bill 624 would retroactively apply to “all permits issued under the act that were the subject of an appeal heard by the Environmental Hearing Board after June 30, 2016.”

Retroactively applying a new standard to any action by a state agency involving a private company – particularly one that is already subject to administrative adjudication – is extraordinarily rare and raises further questions.

The permit at which this legislation appears to be directed involves mining adjacent to and underneath Ryerson State Park, the only state park in Greene County, where prior mining damaged a dam and resulted in the permanent draining of Duke Lake.

State mining law has already been changed to accommodate the mining industry. Time and study have shown that there are significant, and likely permanent, damages to surface waters resulting from underground mining. Senate Bill 624 only creates the likelihood of even more consequential damages.

This proposed legislation runs counter to the Clean Streams Law and Pennsylvania Constitution – if anything, protections under the law should be strengthened.

Pennsylvania has an extraordinary pollution legacy from past mining practices, the cost of which is now borne by the public. Senate Bill 624 threatens to expand this legacy.

For these reasons, we urge you to oppose Senate Bill 624. Thank you for your consideration.

John Walliser

Senior Vice President, Legal & Government Affairs

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(Photo: What is left of the Ryerson Station State Park lake dam after it collapsed due to damage from the same mining operation that is the subject of Senate Bill 624.)