Legislation introduced Thursday would fundamentally change the standard used to judge whether an underground mining plan approved by DEP can be challenged on the issue of whether it prevents temporary or permanent damage to surface streams.
Senate Bill 624 says any underground mining plan approved by DEP which does not predict permanent or temporary damage to streams “shall not be considered presumptive evidence that a bituminous coal mine subject to this act has the potential to cause pollution….”
Since the standard under the state’s Act 54-- the Bituminous Mine Subsidence and Land Conservation Act-- says underground mining must be conducted in a way that prevents damage to streams and aquifers, mining plans submitted to DEP typically claim that there will be no permanent damage to streams or that any temporary damage can be mitigated.
If enacted, it would mean any plan approved DEP would automatically be presumed to not allow permanent harm to streams or their designated uses.
This raises the threshold of permit appeals, because challengers would have to prove nearly conclusively that permanent damages will occur to streams if the underground mining was allowed to proceed.
In practice, this likely means that challengers to any plan would all but have to wait until damage occurs to a stream before a challenge would have a chance of being successful.
Retroactivity
The bill not only applies to future actions, but also applies “retroactively 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 is extraordinarily rare.
One case that fits this very specific provision is a December 19, 2016 appeal to the Environmental Hearing Board of a Consol longwall mining permit under Ryerson Station State Park in Greene County by the Center for Coalfield Justice (EHB Docket No. 2014-072-B).
On January 24 the Environmental Hearing Board issued a rare supercedeas in that appeal to temporarily stop mining before it could impact Polen and Ken Runs, portions of which are in the state park, until the merits of the case could be heard.
Before the appeal could be filed, Consol undermined and damaged a section of Polen Run just outside the park boundary.
The Consol permit predicted significant damage, notably subsidence and flow loss to the streams in the park.
The EHB supercedeas is being appealed by Consol to Commonwealth Court.
Veronica Coptis, Executive Director of the Center for Coalfield Justice said in reaction to the bill, “After three permit challenges and nearly 3 years of litigation before the environmental hearing board on the eve of a decision the proposed bill takes that decision away from the expertise of the EHB.
“This kind of legislative overreach challenges our democracy and allows the legislative body to act as the judicial body. The future of Ryerson Station State Park is at stake with this bill. Elected officials will decide whether future generations get to fish at the park or whether the streams will be destroyed in a matter of years.”
The original appeal of the Consol permit was filed in May of 2014.
40% Of Streams Damaged
A report on surface damage caused by underground coal mining issued in January of 2015 covering 2008 to 2013 by DEP said 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.
In addition, 8 of 55 stream segments identified in a previous report had yet to recover from the impacts of mining.
According to the most recent status report given to DEP’s Citizens Advisory Council this month, DEP said, “The [DEP] Bureau of Mining Programs is working with the California District Mining Office to systematically review the Act 54 report [from 2015 as noted above]. Discussions have identified a few categories of action items. The Department has received the CAC comments and will work with the Council to address their concerns. The TGD Surface Water Protection- Underground Bituminous Coal Mining Operations will be revised to address some of the issues raised in the Act 54 report and in response to recent litigation.”
According to the most recent status report given to DEP’s Citizens Advisory Council this month, DEP said, “The [DEP] Bureau of Mining Programs is working with the California District Mining Office to systematically review the Act 54 report [from 2015 as noted above]. Discussions have identified a few categories of action items. The Department has received the CAC comments and will work with the Council to address their concerns. The TGD Surface Water Protection- Underground Bituminous Coal Mining Operations will be revised to address some of the issues raised in the Act 54 report and in response to recent litigation.”
For more information on mining and mine subsidence prevention, visit DEP’s Act 54 webpage.
Additional Background On Consol Permit
In 2013, the Department of Conservation and Natural Resources and Consol reached an agreement to repair the damage longwall mining did to the lake dam at Ryerson Station State Park by replacing the dam and allowing Consol to conduct additional mining in certain areas.
Replacing the dam did not prove feasible and DCNR is in the process of determining the best recreational opportunities that could be developed in the park.
(Photo: The dam damaged by underground mining at Ryerson State State Park.)
Related Stories:
DEP Citizens Advisory Council OKs Comments On Act 54 Deep Mining Impact Report
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