This issue of Pollution Update is long, but it has a lot to say. Thanks to a five-year old law written by, for and of the special interests, Pennsylvanians are in danger of losing their homes and livelihoods, in the name of profits for multi-national corporations.

Coal Is Not King, But With Act 54 To Protect Us, It May As Well Be

The long-awaited report on "Act 54," the amendments to the underground mining act, is out, and as might be expected, it has attracted analysis by a number of groups. Without getting into the statistics, or rehashing the analyses already done, suffice to say that, DEP minimizes any damage caused by the mining that they permit.

DEP, without the least bit of shame, also says that they are going to get around to the job that we pay them to do. They should be assessing damage caused to streams by the underground mining that they permit, and they haven't been doing it. This is directly from DEP's press release:

"There are an estimated 91 miles of streams in the study area. Although 16 incidents of stream damage were reported, many could not be confirmed and are undergoing additional investigation for the supplemental report to be issued later this year."

Five years have passed, and DEP hasn't done what they were supposed to. So now they will hurry up and drive by the creeks this summer to confirm that the streams are gone. Perhaps they will blame it on the draught. DEP was also supposed to be gathering data on damaged buildings and disrupted water supplies from the coal companies. Although they were to be doing this since Act 54 passed in 1994, they didn't get around to sending the letters asking for the information until the Summer of 1997. During the traditional vacation season, the badly worded questionnaires arrived in homes, allowing less than 3 weeks for a response (see PU of April 14, 1998). Interestingly, local citizens groups received many calls from families whose homes and water supplies had been damaged...... yet they never received a copy of the questionnaire! So much for DEP making permit decisions based on data or potential damage to the environment.

On the other hand, DEP doesn't need this report, or more investigations to know that longwall mining is going to cause problems. This is from the report:

[Longwall mining] "causes the overlying rock to sag resulting in subsidence at the ground surface. The timing and extent of this subsidence is predictable." Somehow that is supposed to be better than the old technique, "room and pillar" mining, where pillars of coal are left to hold up the ground. DEP says that room and pillar "often leads to unpredictable subsidence and damage to surface structures years or even decades after mining has ceased." They fail to say that the subsidence may not happen, and if it does, is often very minor. According to this logic, knowing your house is going to fall apart next week, is better than possibly having cracked plaster twenty years later. About the norm from "customer- friendly" DEP. Their customers are coal companies, not Pennsylvania citizens.

In other words, DEP knows that the permit that they issue for longwall mining is going to cause problems on the surface -- to streams, to homes, to public buildings and utilities. They know it, and issue the permits anyway. Act 54 tells them to.

Act 54 is a real bonus, if you are an underground coal mining company. For the 99.9999% of the rest of us, it stinks. How can it affect you if you don't live over a mine? Well, for one thing, it says that utility companies are responsible for repairing the damage to utilities caused by underground coal mining. This is not a misprint. The utilities are responsible, the coal companies are not (see the PU of March 21, 1997 ). If your water company has to pay for repairing the lines, the bill will eventually be paid for by you. Some of the water companies are statewide, and everyone will get a share! The coal companies aren't responsible, even though subsidence from longwall mining is "predictable."

And You Thought You Had a Bad Day After Seeing The Water Bill!

But just try to imagine your life if you have the bad luck to live over a longwall mine. The "predictable" subsidence causes massive slumps (http://ncgmp.cr.usgs.gov/ ncgmp/ omaha/subside.htm). If a home is on top, it breaks apart, if a spring is on top, it likely dries up.

But Act 54 makes the coal companies compensate for the surface losses, you say. Act 54 doesn't require the coal companies to compensate, nor DEP to even tally, the human cost of longwall mining. What compensation would you give to a person who has to stoop and duck through each doorway in their home to avoid the 2 x 4 braces? How long can human beings stand living in a house where steel cables are wrapped around it to "minimize damage" and then having your home surrounded by trenches often more than 10 feet deep and four feet wide at the top! Imagine having strangers videotape and photograph your home, grounds, and other structures both before and after the mining. These "pre-mining" and "post-mining" inspections and the visual materials gathered are not controlled by law to safeguard the privacy and security rights of property owners. One mining company went as far as to have its employees videotape and photograph the contents of closets in homes! How can a farmer with livestock sleep wondering if tomorrow is the day the spring -- that waters the herd and has for years --finally stops running?

Maybe you would like a "water buffalo" parked in your back yard for a couple of years? A constant and hideous reminder of how your life was disrupted by longwall mining. There are no regulations mandating that this 1000 gallon or more plastic container ever, be tested for contaminants. In the summer it sits outside and bakes in the heat. In the winter, you pay for the heat cables to keep it from freezing.

How can this happen? Why doesn't DEP deny the mining permits? The coal companies would argue that the coal is their property, and they have a right to extract it. The Fifth Amendment to the U.S. Constitution prevents the government from taking private property for public use, unless the government pays for it.

They are not shy about this. Consol Coal Company spokesman Tom Hoffman said, "Look, we bought and paid for, many years ago, the right to do what we're doing," (quoted in the Pittsburgh Tribune- Review, October 26, 1997), alluding to the fact that the mineral rights were purchased back in the days when coal was mined by blasting, pick and shovel. Never mind that the coal is now mined in an entirely different way -- one that makes destructive subsidence a certainty.

The coal companies and their allies often attack environmental protection through the "takings" argument. Need a permit to fill in a wetland? It's a takings! The courts are full of cases attacking environmental regulations through the "takings" argument, and practically every legislature in the country and Congress has seen "takings" legislation introduced.

The "takings" fans have done this claiming that they are protecting "private property rights," and they would have you think that the ones fighting government on this issue are little people like you or me that want to do some minor thing to improve their property but are prevented by the Thought Police. Is that the case?

Pennsylvania has its share of these "private property rights" or "landowner" groups, and has had "takings" bills introduced into the General Assembly.

Be Careful What You Wish For --You Might Just Get It!.

But maybe these folks are actually onto something. The "takings" argument is certainly a two-edged sword. In Western PA, property rights are divided between surface and sub-surface rights. DEP issues permits to conduct longwall mining, despite the clear evidence that longwall mining cannot be done without surface subsidence. From DEP's report: "[longwall mining] "causes the overlying rock to sag resulting in subsidence at the ground surface. The timing and extent of this subsidence is predictable."

DEP considers this when they review the permit application, or disregards it. Doesn't really matter, because they grant permission to mine using this destructive method because of some supposed compelling public interest (we need the coal, jobs, etc. ). But when the surface rights are diminished -- is this any less a taking than the denial of a permit using a longwall technique? Probably more so, because coal could be removed using a less destructive technique. They just wouldn't make as much money....and they would require more workers. At present the coal industry employs less than 1/2 of 1% of Pennsylvanians. It's time to debunk the jobs versus homes myth spread by the industry.

Government, if it functioned properly, would say to the coal companies, "Are you crazy? The method you choose to mine will certainly result in surface damage. Therefore, you cannot mine using this method. Come back with an application that indicates you will mine using safer techniques, ones that will be less destructive of the surface."

The coal companies will say this is the only economical way they can mine. "If you prevent us from mining this way, we effectively can't mine at all. It's a takings!"

Wait, when did you buy the mineral rights? Remember the statement, "[l]ook, we bought and paid for, many years ago, the right to do what we're doing."

Many years ago? Sorry! You bought the coal. Not to get it out any way you want, at any cost (to others). That's the risk when you speculate. Maybe the day will come when you can get it out economically without screwing up the surface of Pennsylvania. Not our fault coal seams in Wyoming are so thick that it costs only $3 a ton to get it.

But DEP is not interested in comparing the "rights" of that corporation to the rights of the homeowner that bought a place to live, or the rights of the fourth-generation farm family. These folks aren't speculating, buying things waiting for the price to be right. They just want a place to live and work in peace. What about their property rights?

DEP, in issuing a permit, finds there is a compelling public interest in having a company use longwall mining techniques to extract the coal, despite the certainty of other's property rights being diminished. Therefore, the issuance of the permit is subject to a "takings" claim, pure and simple.

Well, maybe "takings" bills in the General Assembly are a good idea, because they will make DEP review when their actions will result in loss of private property? Nope. These bills are written by the coal companies and their pals. Only a permit denial triggers the review. Issuing a permit doesn't make the agency do anything. In other words, the property rights of extractive industries and companies that fill wetlands are more important than the property rights of people.

One court case on "takings" ruled that a cable TV box on an apartment building, when mandated by a city, was a "takings." What about a water buffalo in your yard because DEP issued a permit that made the placing of that tank a certainty? It's there because of a (supposed) compelling public interest, and it is a physical occupation of your land. Takings, pure and simple. Even if it is temporary, even if it is supplying you water. Figure out a rent bill for the monster and send it to DEP or better, the General Assembly.

Your house has to be braced? It's a takings. Doesn't matter if they fix it all up later on. Because of a government action, your property rights were diminished through a physical occupation. It's a takings.

DEP closes their report summary with these words:

"One thing this report clearly shows is that DEP needs to educate surface property owners about their rights under the mining law."

Well, DEP, their rights don't start there. Act 54 doesn't supersede the Fifth Amendment. Maybe some attorney will look to make some constitutional law, and DEP will find itself paying dearly for the collateral damage of longwall mining. As they should, or find some spine and deny permits.

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