Outlaws of the Southwest

A couple of weeks ago, we did a story on how developers automatically expect a permit to be granted whenever they apply to Pittsburgh District of the Army Corps of Engineers for a wetlands permit [ http://www.rayproffitt.org/pu2000/11082000.htm]. For as bad as that program might be, it certainly has a rival in DEP's mining program. That program is one hen house where the fox is in charge. The Foundation recently released a report documenting the shoddy job that DEP's mining program does in considering wetlands when issuing longwall mining permits [http://www.rayproffitt.org/pu2000/10102000.htm].

One coal company official didn't like the report, and, you gotta hand it to the coal companies, they hire very smart people. This official, besides doing whatever he does for the coal company, can also break codes! In an October 11, 2000, newspaper article [http://www.observer-reporter.com/NEWS/WASH/10-11-00wash1.html], Tom Hoffman, a spokesman for Consol Coal Company, said that the report was "a code word for 'we want to outlaw this activity.'"

Well, for the record, we want coal mining to only occur if laws like the Clean Water Act are obeyed. And we can play Mr. Hoffman's game and break codes, too. His statement is a code word for "we won't make as much money if wetlands and streams are protected as the law prescribes."

He would probably disagree, and in the same article he says: "It has been demonstrated time and time again that the effects from mining are temporary in nature. We'll be able to correct those problems." Another recent article talks about Consol going into a stream, the Enlow Fork of Wheeling Creek, to repair the damage done by longwall mining [http://www.observer-reporter.com/NEWS/GREENE/10-13-00greene0.html--consol]. Mr. Hoffman again: "We're going to drain a couple of the pools by deepening the channel in between, and we're going to do some bank restoration work... Streams are affected all the time, not just by mining. We're not using new techniques here."

Well, I guess he told us. The land just sinks a little bit and a couple pools are created. Nothing that can't be fixed. Just in case he's not quite correct, we decided to do a little digging of our own. Lets see what damage has been done to streams by longwall mining, and just how "temporary" that damage is.

And what better source than our friendly Pennsylvania DEP mining program? When Act 54 became law in June, 1994, it directed DEP to gather information on "the effects of deep mining on subsidence of surface structures and features and on water resources..." DEP was to analyze the data and draw conclusions. So of course, we should go to DEP's web site and see what information DEP has gathered on streams.

Wow, the report on Act 54 has a whole section entitled, "Impacts on Streams in the Study Area." This report should give us plenty of information. On the first page of the section, DEP says that

Most mining took place beneath the area's smaller tributary streams... The Department's current regulations protect only those streams that qualify as perennial. At this time, most streams within the study area have not been classified as perennial, intermittent or ephemeral based on regulatory definitions. Stream classification is done at the time of permit application and is based on the flow information compiled by permit applicants.

When a DEP-authored report starts off with a recitation of their limited authority, and that DEP relies on the "permit applicants" to supply the information that DEP needs to make a critical call, you can suspect real trouble. Granted, maybe the mining regulations protect only perennial stream (those that flow year round, while intermittent streams may occasionally dry up, even for only a couple days a year, while ephemeral streams are those that flow after rain or during snow melt) but there are other state and Federal laws that protect intermittent streams. Wait a minute, you say, perhaps Act 54 governs coal mining and was is so comprehensive that these other laws aren't needed. Good point. Let's take a look at Act 54 and see... Huh. As a matter of fact, Act 54 specifically mentions that it (Act 54, that is) does not "amend, modify, or otherwise supersede" the Federal mining law, the Clean Streams Law, and regulations that the state has put into place to implement both these other laws. And, boys and girls, the legislature specifically put this provision into Act 54 it wasn't in there before. So there's no doubt that the General Assembly meant that any applicability of these other laws to longwall mining still exists--in addition to Act 54. Otherwise, why mention these other laws at all?

The report might as well say this:

Most raiding took place inside the area's smaller hen houses... The Department's current fox regulations protect only those hen houses that qualify as big (the Department disregards other laws protecting hen houses). At this time, most hen houses within the study area have not been classified as big, medium, or small based on regulatory definitions. Hen house classification is done at the time of raiding and is based on the size information compiled by foxes.

Well, maybe the rest of the report has some information.... Hey, this section is only 2 pages long! That's it, folks; two pages. Two whole pages to report information that they should have been gathering and analyzing for five years. Doesn't look like they did very much.

DEP says that they had reports of 16 streams affected. Fourteen of those were due to longwall mining, a pretty good batting average for longwall. Twelve streams suffered loss of flow or were diverted (or both), while two were "ponded" (subsidence caused collapse of some areas and turned the stream into a series of small ponds) and the damage to two was "unspecified." DEP is quick to point out that they don't know how many of these were perennial streams, again implying that they only have to protect perennial streams. Well, we can understand why they didn't look at these 16 reports. They only had five years.

DEP's own staff observed nine affected streams which were considered perennial even by the foxes' own information. Eight were ponded and two suffered loss of flow (one stream must have been affected by both). One diminished segment was 4000 feet long--that's eight tenths of a mile of stream gone.

DEP reports only one repair effort, designed to reduce flooding, not repair the stream. DEP closes their whopping two page report with this strong statement:

The diminution incidents reported by the Department's surface subsidence agents were discovered late in the study period [wonder what they were doing for the previous 4 years and eleven months? ed.] and were still under investigation at the time of report preparation. If the Department finds that the impacts are mining-related and can substantiate that the stream was perennial prior to mining, it will take appropriate action to require the mine operators to restore the streams to the extent technologically and economically feasible.

Wow! DEP gets tough with mining companies! First of all, it's been a year since this report has been prepared. What's going on, DEP? What's the result of your investigation? And, once again, other regulations require you to protect intermittent streams.

We know what the answer will be. "Oh, we will make them go in and fix things. Just look at Enlow Fork. We are making them go back and fix it." We wonder how much Consol and DEP were motivated by the attention other agencies have been paying to longwall mining, and to Enlow Fork. Both the PA Fish and Boat Commission and the US Fish and Wildlife Service have been nosing around down there (there's some scuttlebutt that DEP isn't too happy about it, either; stay tuned, readers). EPA is yet another agency, and they have found some problems, in, guess where? Enlow Fork.

In an October 11, 2000, letter to RPF, EPA Region 3 Administrator Bradley Campbell transmits a report of a study done by EPA that found that longwall subsidence "caused shallow stream riffles in Enlow Fork to be changed to pools... the result is an impairment of aquatic habitat." In response to RPF's assertion that ponding and loss of flow were serious impacts attributable to longwall, Mr. Campbell said "we agree with your assessment of stream impacts from longwall subsidence and share your concerns... about the resulting impairment of aquatic habitat."

No wonder DEP and Consol were so anxious to go out there and try to "fix" Enlow Fork. The Feds are starting to nose around. But face it, DEP. You've done precious little in the last five no, make it six--years. Last year, you knew of nine streams with ponding, two with diminished flow, and 16 others that may also need attention. And you want to pat yourselves on the back with making them go back and "fix" one? And no one knows if the "fix" will work. Maybe we should ask some of the homeowners how happy they are with the coal companies' performance in repairing homes damaged by longwall mining. That may give us some indication of how well the coal companies will fix streams, assuming they can fix them.

That doesn't mean that the DEP is holding up the review and approval of longwall mine expansions while they take their time gathering information. In a Saturday, December 16, article in the Pittsburgh Post-Gazette [http://www.post-gazette.com/neigh_washington/20001216mine7.asp], it's reported that Consol wants to undermine over 7,000 more acres including an interchange of Interstate 79. That would make the total area undermined by one mine to almost 17,000. In other words, Consol wants to undermine an additional 11.2 square miles, increasing the total area of the Eighty Four mine to 26.4 square miles. The article goes on to say that the latest request is the fourth permit expansion requested by Consol this year a couple have already been approved. No indication if DEP reviews these requests any differently based on the Act 54 five year report. We can tell you on which horse the smart money should go.

One big question. What's in store for the future if restoration proves not to be "technologically and economically feasible?" The common sense approach is that permits will be denied, or at least considerably modified so that resources are protected. The DEP track record indicates that the permits will be issued, coal companies will ruin the streams--and walk. But hey, we complained about the orange AMD-affected streams all those years; now the coal companies have found a way to avoid those. Take away the water, and it can't be orange, right? Maybe AMD is another one of those "temporary" impacts of mining.

We started out this story by comparing it to a fox guarding a hen house. Thanks to Mr. Hoffman's code-breaking activity, we have come up with an even better comparison. He said that RPF wants to "outlaw" longwall mining. Well, remember those old westerns that had a bunch of thugs in charge of a terrorized town, with either a weak or cooperative sheriff? Well, picture the longwall mining situation as such a movie. We could call it "Outlaws of the Southwest." The public's resources could play the terrorized victims, the DEP mining program the sheriff (naturally), and the coal companies play... well, you get the idea. Most of those films ended the same way.

"Outlaws of the Southwest"

Starring

The Public Trust as "Lee King Brook"

The DEP Mining Program as "Sheriff N.O. Problem"

And Special Guest Star,

The Coal Companies as... "Warren Chargehere"

RPF has filed a sixty day notice to sue DEP, the US Office of Surface Mining, and Consol for damaging Pennsylvania's streams in violation of Pennsylvania's Clean Streams Law, and the Federal Clean Water Act and Surface Mining Conservation and Reclamation Act. Bring your own popcorn to this one, folks.

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