On May 17, Sen. Camera Bartolotta (R-Washington) sent a co-sponsor memo to Senators announcing her intent to introduce legislation to make reporting on subsidence damage to homes and business, water supplies and streams caused by underground coal mining optional under the Bituminous Mine Subsidence and Land Conservation Act.

“Over the past two decades, DEP has issued four reports and is scheduled to release the fifth report this year,” said Sen. Bartolotta.  “While the reports have consistently demonstrated the efficacy of the Bituminous Mine Subsidence and Land Conservation Act in achieving its legislative intent, the cost for DEP to complete the report has continuously and sharply risen.

“Given this, my legislation would give DEP increased fiscal flexibility by removing the requirement to utilize a third-party and making the five-year report discretionary,” said the Senator.  “Finally, the legislation would require that any report compiled is submitted to the House and Senate Environmental Resources and Energy Committees.”

Click Here for a copy of the co-sponsor memo.

Background

In 1994, Act 54 was passed to amend the Act with compromise language worked out by a stakeholder group led by the Western PA Conservancy over several years to allow longwall underground coal mining in Pennsylvania if the industry accepted a “your break it, you fix it” requirement to repair subsidence damage to structures, water supplies and streams caused by this mining technique and underground coal mining generally.

Part of the compromise language was a requirement that every 5 years DEP was to prepare a report documenting the damage to structures, water supplies and streams caused by longwall and underground coal mining and submit the report to the Governor, General Assembly and DEP’s Citizens Advisory Council.

DEP has so far completed 4 Act 54 reports and is due to have the fifth completed by the University of Pittsburgh by August 31 of this year covering 2014-2018.

Visit DEP’s Act 54 webpage for copies of the reports and more background.

Last Act 54 Report

The 2008-2013 report found 40 percent of streams undermined by underground 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 the 55 stream segments identified as being affected in the 2003-2008 report have yet to recover from the impacts of mining.

There were 855 reported impacts to water supplies from longwall mining: 393 were found to be from longwall mining, 384 from room-and-pillar deep mining, 54 from inactive deep mines and 24 from pillar recovery mining.

In one-third of the cases, the mining company was not found liable for the water loss or contamination.

Despite an 18 percent drop in the number of acres undermined, the number of water supply reported effects has increased by approximately 25 percent (855 from 683).

It took an average of 220 days to resolve water loss/water contamination issues either through permanent replacement water supplies, repair of the water well or agreements for compensation with landowners.

A total of 201 water loss/water contamination cases were not resolved by the end of the 2008-2013 reporting period.

There were 389 cases of reported damage to surface structures of which 238 were determined to be caused by mining: 315 from longwall mining, 48 from room-and-pillar, 19 from inactive deep mines and 7 from pillar recovery mining.

It took an average of 169 days to resolve cases of surface structure damage.

When the last report was issued in 2015, DEP Deputy Secretary for Active and Abandoned Mine Operations John Stefanko said, “This report provides vital information about the significance of bituminous mining on Pennsylvania’s landscape. We will use this information to evaluate the effectiveness of our mining program and consider ways to enhance the program in the future.”

Citizens Advisory Council Review

Act 54 requires DEP’s Citizens Advisory Council to comment on all Act 54 reports. Their comments in 2015 found the data in the report identified significant impacts due to underground mining and among the recommendations for improvements in the law and regulatory program were--

-- Independent Review Committee: Asks Gov. Wolf to convene by Executive Order an independent, technical committee to study whether a water supply impacted by underground coal mining can be restored to pre-mining conditions in both water quality chemistry and biological characteristics and make recommendations, if appropriate to Act 54 to the General Assembly and Governor.   The CAC notes that 8 of the 55 streams determined to be affected in the previous report (2003-2008) have yet to recover to pre-mining conditions.

-- Disclosure Of Restoration Measures: The CAC recommends Act 54 be amended to direct mine owners to disclose to DEP how water resources impacted by underground mining operations were restored or reclaimed through private landowner agreements.  Without this data, the Commonwealth is not in a position to adequately assess if the intent and purpose of Act 54 are being fulfilled.

-- Presumption Zone Should Be Increased: The 35 degree Rebuttable Presumption Zone, as provided in Section 5.2(c) of Act 54, should be reassessed by DEP through consultation with appropriate technical professionals.  With this recommendation, the CAC notes that 25 percent of mine-liable water supply effects were identified in the most recent Act 54 Report to lie outside the Rebuttable Presumption Zone, including as much as 85 degrees outward and upward from the edge of mining.

Internal Review By DEP/University Of Pittsburgh

In November of 2015 DEP and the University of Pittsburgh completed an internal review of the data in the 2008-2013 Act 54 report resulting in recommending changes to improve reliability of how data is collected and retrieved and a review of the technical guidance document outlining how DEP protects surface water from underground coal mining operations (563-2000-655) that was last revised in October, 2005.

No changes have yet been made to the 2005 technical guidance.

Changes To Act 54

The PA Environmental Council, among other groups, used the information in the Act 54 reports to call for changes in the way streams and aquatic life, in particular, are protected.  Their comments said, in part--

“For PEC, most of the programs, projects, and policies on which we work are aimed at ensuring a positive conservation and environmental legacy. We were involved in the Deep Mine Mediation that led to Act 54.

“Our goal was a regulatory program that balanced the economic realities of full extraction mining with the anticipated impacts of that mining, with the goal of reducing and managing those impacts as much as possible.

“What we have witnessed over the last twenty years has led us to question whether Act 54 was possibly meeting our goals for it.

“While it is very late for these revelations, the fourth five-year report finally gives the evidence to allow us to say that Act 54 needs to be seriously revisited and Pennsylvania’s waters better protected.

“Act 54 was an attempt to strike a balance between competing landowner interests, but it did not erase the responsibility of mine operators to protect aquatic resources. Act 54 expressly states that it does not amend, modify, or otherwise preempt protections or standards related to surface and groundwater resources pursuant to the Clean Streams Law or other applicable authority.

“The Department has clear responsibility and authority to prevent, identify, and remedy impacts to aquatic resources.”  Click Here for a copy of PEC’s full statement.

In 2017, the General Assembly passed and Gov. Wolf allowed legislation to become law to retroactively roll back protections for streams from underground coal mining.

The legislation was introduced in April to influence an appeal then pending before the Environmental Hearing Board involving 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)

Groups like the PA Environmental Council have opposed the bill on the grounds recent studies by the Department of Environmental Protection have demonstrated the existing protections in Act 54 are not adequate to prevent permanent, long-term damage to streams.

Ultimately the appeal was settled with an agreement between Consol, the Center for Coalfield Justice and DEP that prohibited coal mining under Kent Run in Ryerson State State Park.

(Photo: From a presentation by Professors Anthony Iannacchione, Stephen Tonsor, Associates Professors, University of Pittsburgh, 2011.)

Related Stories:

DEP Report: 40% Of Streams Show Adverse Impacts Of Underground Coal Mining

PA Coal Alliance: Act 54 Longwall Mining Law Balances Extraction, Landowner Rights

DEP Citizens Advisory Council OKs Comments On Act 54 Deep Mining Impact Report

PA Environmental Council Calls For Overhaul Of Act 54 Longwall Mining Law

Gov. Wolf Allows Bill Rolling Back Protection For Streams From Mining To Become Law

[Posted: May 21, 2019]

5/27/2019