Within the petition area, LCT Energy has an expansion of its Rustic Ridge #1 underground coal mine and proposed the Rustic Ridge #2 underground coal mine.
The mine would include a 2,322.6-acre underground mine and a 64.6-acre surface facility with wastewater treatment systems permitted to discharge up to 2 million gallons of treated mine water per day.
The Board found that MWA's petition "is not frivolous" and that DEP's decision to reject it "was not consistent with the regulations."
Click Here for a copy of the petition.
Click Here for DEP petition rejection letter.
The Unsuitable for Surface Mining Program was established in 1980 amendments to DEP’s 25 PA Code Chapter 86 regulations.
DEP Did Not Understand The Regulations
DEP said in its letter rejecting the petition that it lacked evidence linking mining impacts from surface mining activities and only includes impacts from underground mining.
In DEP regulations at 25 Pa Code Chapter 86 (D), the definition of “surface mining operations” covered by the petition process specifically includes-- “surface activity connected with surface or underground coal mining, including, but not limited to, exploration, site preparation, entry, tunnel, slope, drift, shaft and borehole drilling and construction and activities related thereto, coal refuse disposal, coal processing and preparation facilities.”
The Board said in its opinion, DEP’s Director of the Bureau of Mining Programs acknowledged in a deposition DEP did not understand the definition of “surface mining operations” and the letter it wrote rejecting the petition used an “understanding” that “was too narrow.”
The DEP Bureau Director “also conveyed that given the Department's new position as to what activities qualify as "surface mining operations," the Department would opt to remove the following sentence from its Determination Letter: "The petition provides facts and supporting evidence that only associate those impacts with underground mining activities; the petition does not adequately link those impacts to surface mining activities as defined in§ 86.101". “
“Later in the argument, the Department again acknowledged that, during the course of this appeal, it came to understand that the definition of "surface mining operations" is broader than it had originally understood.
The Board also said in the DEP Bureau Director’s “deposition and an internal Department email further reflect that the Department had limited recent practical experience processing UFM petitions.”
The Board concluded-- “These concessions are important as they show that the Department did not simply exercise its technical judgment about the weight of competing scientific evidence but instead rejected the Petition under a legal interpretation that failed to account fully for the regulatory language in the UFM [unsuitable for mining].”
“The Department's post-appeal position confirms the reason why the Petition should not have been rejected at the threshold stage.
“At oral argument, the Department agreed that the construction and operation of an impoundment is a surface activity.
“It also agreed that the discharge of water from an impoundment is a surface activity. (Id.).
“The Department further agreed that, to the extent the Petition contains allegations of harm resulting from the discharge of water, those allegations are something the Department should have considered in determining whether the Petition was frivolous.
“That is enough to undermine the Department's original rationale.
“The Petition alleges harm associated with the collection, storage, treatment, management, and discharge of mine water at the surface.
“Those allegations may ultimately fail. But they cannot be rejected categorically on the ground that they concern only underground mining,” the Board said.
“Nor is this a circumstance in which the Department is entitled to deference.
“An agency interpretation is not entitled to deference when that interpretation is inconsistent with the plain language of the regulation.”
“The Board has likewise declined to defer to Department interpretations that are not directly supported by the statutory or regulatory language or that have not been consistently applied.”
DEP Could Not Define The Terms It Used
The judges found that although DEP claimed the Petition lacked "serious merit," they could not define what the term means.
The Board said-- “The Department itself struggled at oral argument to articulate the precise threshold between a petition that lacks serious merit and one that warrants technical study.
“When asked what "serious merit" means, the Department responded that it did not have "a particular sort of quantum" of evidence that would satisfy the threshold.
In a line of questioning conducted by Chief Judge Beckman, the Department was unable to articulate where it drew that line."
Limited Review of the Petition
The Board said-- “The record also confirms that the Department did not technically evaluate several central allegations of harm during its initial review.
“In discovery, the Department stated that it did not evaluate the alleged surface-water impacts, changes in streamflow, temperature-related pollution, changes in pH, or changes in iron and manganese because it had determined that those impacts were beyond the scope of the UFM Program.
“Thus, the Department did not reject those allegations after conducting a technical inquiry and determining that they lacked factual or scientific support.
“It excluded them based on its interpretation of the program's legal scope.”
The limited nature of the initial [petition] review is further reflected in the testimony of DEP's Mining Bureau Director, according to the Board.
He "testified that he read the Petition from beginning to end once during the 30-day review period, did not perform a detailed independent analysis, and relied in material part on his general knowledge of the proposed mines and mining practices."
The “testimony does not suggest that the Department acted in bad faith or ignored the Petition. It does confirm, however, that the Department did not perform the detailed technical study contemplated after acceptance.”
Pending Mining Permit
DEP and LCT argued that the Petition could not be accepted because of the pending mine permit application, but the Board rejected that argument, making clear that DEP can-- and should-- conduct the unsuitable-for-mining study while it also reviews the pending mine permit.
Conclusion
The Board said-- “Having reviewed the Petition and its supporting technical materials, we conclude that MWA's allegations do not "lack serious merit" within the meaning of 25 Pa. Code §86.124(a)(2).
“The Petition contains substantially more than generalized concerns about the effects of coal mining.
“It identifies particular environmental resources, particular proposed mining activities and facilities, particular mechanisms of alleged harm, and particular consequences that MWA contends may satisfy the criteria for designation under Section 86.122.
“Whether those allegations will withstand a complete technical study is a separate question.
“They are nevertheless sufficient to pass the preliminary frivolousness review. “
"MWA hopes the decision will breathe new life in the UFM program," said MWA attorney Melissa Marshall. "The program was created with the intent of protecting areas exactly like the Youghiogheny River Watershed, that suffer from contamination of both past and current coal mining operations."
No Action On 9 UFM Petitions
During litigation, documents uncovered that DEP staff had not "taken any action on anything related to UFM in years," despite the fact that the Department was "sitting on about 9 UFM petitions" dating back to the early 2000s with no action taken.
"MWA hopes the decision will breathe new life in the UFM program," said MWA attorney Melissa Marshall. "The program was created with the intent of protecting areas exactly like the Youghiogheny River Watershed, that suffer from contamination of both past and current coal mining operations."
Next Step
Regarding UFM review, the Department will begin an almost year-long process of conducting an in-depth technical study - gathering original data on the petition area’s water, wildlife, and past mining problems.
Unlike a mine permitting process, the technical review looks beyond a mine’s immediate footprint to consider broader impacts, including fish and wildlife, long-term water-supply productivity, and whether mining would damage economic resources in the petition area.
Click Here for a copy of the EHB decision.
Visit the Mountain Watershed Association Rustic Ridge Coal Mine webpage for more information on this issue.
The Mountain Watershed Association is a nonprofit organization dedicated to protecting, preserving, and restoring the Youghiogheny River watershed and its broader communities.
Visit DEP’s Unsuitable for Surface Mining Program webpage to learn more about this program.
Resource Links:
-- Inquirer - Andrew Seidman: How LCT Energy’s Rustic Ridge Coal Mine In Westmoreland County Won Over Harrisburg, Shapiro Administration, Now In Fight With Local Environmental Group [PDF of Article] [PaEN]
-- DEP To Hold June 16 Hearing On Water Quality Permit For Rustic Ridge II Coal Mine In Westmoreland County [PaEN]
-- DEP Sets Aug. 20 Informal Conference [Open House/Hearing] On A New LCT Energy, LP Rustic Ridge II Bituminous Underground Coal Mine In Westmoreland County [PaEN]
[Posted: July 8, 2026] PA Environment Digest
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