The Environmental Hearing Board Tuesday ruled in favor of challenges brought by the Sierra Club and the Center for Coalfield Justice saying a 2015 expansion permit (189) issued by DEP to the Bailey longwall coal mine in Greene County violates DEP’s trustee responsibilities under the Environmental Rights Amendment by allowing Consol Energy to “essentially destroy” Polen Run which flows into Ryerson Station State Park.  [EHB Docket No. 2014-072-B (Consolidated with 2014-083-B and 2015-051-B)]

While the damage to Polen Run was not prevented by this EHB decision because no supercedeas (temporary prohibition on mining) was issued to stop mining until the merits of the case could be heard, it sets a significant precedent for the future based in part on the June 20 PA Supreme Court ruling on the Environmental Rights Amendment.

At the same time the Board upheld the issuance of another expansion permit (180) for the same mine because “the Department gave proper consideration of the environmental effects of its permitting decision and the permit decision did not cause the unreasonable degradation or deterioration of the waters of the Commonwealth in the permit area.”

“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 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.”

This was the EHB case at the heart of the successful effort in June to pass an amendment rolling back protection of streams in the Bituminous Mine Subsidence Act (Senate Bill 624 now Act 32) that Gov. Wolf allowed to become law without his signature.

Tuesday’s opinion notes both DEP and the Sierra Club and the Center for Coalfield Justice argued this appeal must be decided on the law as it stood when the permit decision was made. DEP’s brief did not say whether Act 32 made any change in law, but noted the federal Office of Surface Mining had to approve or disapprove the law as a change to Pennsylvania’s mining program.

Consol argued OSM plays no role and said Act 32 did not represent a change to DEP’s approved mining program.

The EHB concluded, “We agree with the Department and CCJ/SC that Act 32 does constitute a change to the approved Pennsylvania mining program.  Consol’s argument that it is not a change is really based on its belief that Act 32 does not alter the review process used by DEP….   We reject that position….”

The Board added, “Act 32 is without question a change to a Pennsylvania law, the Mine Subsidence Act that is part of the approved Pennsylvania program. The impact of that change on the approved program is for OSM to determine, but we think there can be no question that Act 32 is a change to the law in Pennsylvania.”

Legislators supporting Senate Bill 624 consistently maintained, as Consol has, Act 32 is not a change in law or practice, which begs the question of why it was adopted and allowed to become law.

Tuesday’s decision can be appealed to Commonwealth Court.

Other Appeals Of Bailey Mine Permit Expansions

There are still other appeals of Bailey Mine permit expansions pending before the Environmental Hearing Board, notably EHB Docket No. 2016-155-B where the EHB issued a supersedeas to halt mining that may affect Kent Run also flowing into Ryerson Station State Park.

This appeal pointed to the damage Consol did to Polen Run as a part of the factual basis for the legal challenges made in this second case.

In this appeal, the Environmental Hearing Board dismissed a motion on July 28 by Consol/DEP to dismiss the Sierra Club and Center for Coalfield Justice appeal because it was moot with respect to Kent Run because Consol will not longwall mine beneath or within 100 feet of the stream, according to an agreement with DCNR.

On August 8 Consol submitted a motion asking the EHB to reconsider its decision not to declare the appeal moot.  That motion is pending.

(Photo: Dam at Ryerson Station State Park damaged beyond repair by the same Bailey Mine.)

NewsClips:

Legere: EHB Rejects Consol Longwall Mining Permit Allowing Destruction, Replacement Of Stream In Greene County

Cusick: Environmental Groups Score Legal Win In Consol Longwall Mining Case

[Posted: August 16, 2017]

8/21/2017