Pennsylvania regulators acted contrary to state laws and the constitution when they permitted Consol Energy to “essentially destroy” and rebuild a stream above a longwall mine in Greene County, the five judges of Pennsylvania’s Environmental Hearing Board ruled Tuesday, even as they upheld another permit in the same coal mine.
In an opinion by Judge Steven C. Beckman, the board found the state Department of Environmental Protection was wrong to issue a permit for the Cecil-based company’s Bailey Mine expansion that predicted such severe impacts to Polen Run that a section of the stream would have to be replaced.
But the agency was correct in issuing a permit revision for other parts of the 3,000-acre mining project that caused more limited and temporary disturbances to streams, the board ruled.
“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 [the permit revision] is unreasonable and contrary to the law,” Judge Beckman wrote.
The appeal was brought by two environmental groups, the Sierra Club and the Center for Coalfield Justice, who argued that predicted damage to streams from the collapse of earth above full extraction mining amounted to pollution that violated the state’s stream protection law.
The board said the standard for determining if disturbances from longwall mining violate the law is whether mining, or efforts to fix its damage, “impair” streams so they can no longer meet their designated uses — in this situation, as trout-stocked fisheries that are also home to other species indigenous to a warm water habitat..
In the case of one permit revision, number 180, the board found the “overall character of these streams was not anticipated to significantly change” because of the ground subsidence or Consol’s repairs.
By contrast, permit revision number 189 allowed dramatic impacts and intensive restoration. As a result, “Polen Run as it existed prior to Consol’s longwall mining no longer exists,” Judge Beckman wrote.
“The fact that the department concluded that Consol would be able to construct a functioning new stream to take the place of the stream that Consol was going to completely eliminate because of the longwall mining does not make it reasonable and lawful to grant a permit to eliminate the stream in the first place,” Judge Beckman wrote.
The board also concluded that permit revision 189 violated the environmental rights outlined in the state Constitution because it was “clearly a state action taken contrary to the rights of citizens to pure water.”
Consol’s longwall mining in the permit area removes bituminous coal in panels 1,500 feet wide by 12,000 feet long, after which the roof collapses and the ground above the panel subsides, destabilizing any natural or man-made features on the surface.
DEP spokesman Neil Shader said Consol had already completed work in the longwall mining panels that were at issue in the appeal. Permits for two more panels are still under review. “DEP will take the ruling today into consideration of that review,” he said.
Veronica Coptis, executive director of the Center for Coalfield Justice, said she is thrilled with the ruling even though the damage to Polen Run and other streams around Ryerson Station State Park is already done.
“Now there is some accountability for our community for the streams that we have already lost and clear guidance now moving forward on how streams should be protected,” she said.
More mining in the area is already planned, she said, and the decision should influence DEP’s reviews where similar impacts are expected.
A spokesman for Consol said the company is still reviewing and evaluating the board’s decision.
The case inspired the Pennsylvania Legislature to revise the state’s underground coal mining law to make clear that it allows planned ground subsidence to damage streams as long as the harm is not predicted to be permanent and regulators approve a company’s plan to fix it.
Gov. Tom Wolf allowed it to become law without his signature last month.
The judges said the new law did not apply to the case because the revision to the law must still be reviewed and potentially approved by federal mining regulators.
Either way, the judges said the new law would not have influenced the result because they concluded that Consol’s operations impaired Polen Run based on facts that might not have been known to DEP when it made the permit decision in 2015.
Laura Legere: email@example.com.