Kudos to the local, state and Federal rescue workers on the successful Somerset County mine rescue. While we are often critical of coal companies and agencies that regulate them, we have nothing but deep respect for miners, with one of the world’s most dangerous jobs, and those prepared to help when danger strikes.

Surface Water Protection In SW PA: It’s Put Up Or Shut Up Time

DEP’s Harold Miller is probably having a busy summer reading and digesting all the comments he received on the "draft technical guidance" on protecting surface waters from underground coal mining’s effects. RPF submitted detailed comments, as did other groups and resource agencies. Local citizens, with the most to lose, also weighed in heavily (see PUs of 04/04/2002, 05/28/2002,).

We took exception to various provisions that seem to us to give coal companies benefits that the rest of us do not enjoy:

1. DEP is willing to allow underground coal mining to impact the "existing uses" of streams, if they are "short-lived" or in light of "mitigation." No other program allows this. DEP did not identify how they will determine what "short-lived" means, nor did they identify any "mitigation" measures.

2. Springs are given protection by the Clean Streams Law, but DEP said they will only protect "important" springs–those important to downstream streams or wetlands. And as you might expect, DEP failed to define what "important" is.

3. DEP preaches the "watershed approach" in many of its programs, but there was nothing in the document that indicated that a comprehensive look at a mine’s effects would be required.

4. Before you or I physically impact a watercourse, we need to do an "alternatives analysis" to see if there is a less damaging alternative. There was no mention of that in the draft document.

5. In order not to burden the coal companies, DEP plans to "phase in" these new requirements whenever a mining permit is renewed or revised. That could allow some mines five more years of mining before any new requirements.

Let’s take a look at these in more detail.

1. Mitigation. How can you mitigate for a dried up spring? If the only thing it is used for is drinking water for people or domestic animals, you might be able to. But how do you mitigate for a wildlife use, which is also protected under the water quality standards (a basic part of the water laws)? Especially when all the springs   in the surrounding area are also being dried up.

Since DEP did not identify any mitigation methods, we have sent letters to all the resource agencies (PA Game Commission, PA Fish and Boat Commission, and US Fish and Wildlife Service) along with the US Office of Surface Mining (they oversee DEP’s mining program) asking for examples of "mitigation" of small streams and springs. We will summarize the replies in a future PU.[links to PGC, PFBC, USFWS,  and OSM letter]

And what is "short-lived?" DEP didn’t do much talking on that one. The water program, where the experience with these regulations really resides, doesn’t have anything in its guidance on that topic.

2. Springs and small streams. If you want to discharge treated sewage into a small spring or stream, you need to get a "National Pollutant Discharge Elimination System" permit issued by the DEP water program. The application for the NPDES permit says even if you discharge to a intermittent stream or drainage ditch you need to get a permit. http://www.dep.state.pa.us/eps/docs/cab200149b1126000/fldr200149c53020bb/fldr200149c53170c1/fldr20025pc3240055/fldr20025pc3328075/doc20025pc3331077/01%20Instructions%2002%20Form%20and%2003%20Checklist%203620-PM-WQ0010.pdf 

In addition, the DEP water program has figured out when a "stream" is a "stream"for aquatic life purposes

[http://www.dep.state.pa.us/dep/subject/All_Final_Technical_guidance/wsc/391-2000-014.doc].

These are the requirements and tests that take place if you or I want to conduct some activity that effects surface waters. The mining program needs to use such standard methods in its procedures, not develop some new rigmarole about which springs are "important." Why should coal mining companies get a break when the rest of us follow a different set of already established rules? Is DEP’s mining program afraid to use these already established procedures because it might inhibit mining?

3. Watershed approach A number of local watershed groups sent a letter to DEP asking about the streams that DEP itself had said were affected by underground coal mining [link to restoration letter]. The letter said that not only should those streams be restored, but restoration should be conducted on a watershed basis.

In our comments, RPF agreed with these local groups, and also said that before mining occurs, the potential affects should be considered on a watershed basis. This goes beyond subsidence and drying up, but also includes impacts to water chemistry and pollution. A short while back, there was a lot of discussion about whether longwall mining causes on-lot septic systems to malfunction, and whether or not one could build on land that had been subsided. The water regulations could be interpreted this way. We had heard that there was a disagreement between the DEP water program and the DEP mining program.

Recently DEP announced that all was well. They looked at the regulations and determined that they applied to sinkholes that are caused by "room and pillar" mining (where pillars of coal are left in place to support the surface), and not to the subsidence caused by longwall mining.

http://www.dep.state.pa.us/update/default.asp?ID=6560 

http://www.dep.state.pa.us/dep/deputate/watermgt/Wqp/WQP_WM/SEO-Ltr-Mines.htm 

In their carefully worded letter, DEP says that mine owners are responsible for fixing any damages to existing systems. And as far as new systems go (those built in the last few years on land that had been subsided by longwall mining), "there have been no documented cases of onlot system failures of new systems caused by mine subsidence reported to DEP."

That last phrase is a good one: "reported to DEP." This says to us that DEP hasn’t bothered to check any of these systems themselves, but are relying on reports from others. How many lay people would know if their new onlot system is working properly (sewage effluent percolating slowly through soil) or not (sewage effluent running quickly through down through fractures or cracks and possibly contaminating groundwater)? Most homeowners would only know if their onlot system is malfunctioning if there is some clog in the system that would cause water to come up to the surface. That’s not likely to happen where the earth has been fractured and cracked to a depth of up to a couple hundred feet. Maybe there is no evidence of groundwater contamination from onlot sewage systems because there is often no shallow groundwater left at all in areas that have been longwalled!

4. Alternatives analysis The Chapter 105 regulations state that an "alternatives analysis" must be conducted before altering a watercourse. DEP didn’t bother to include this in their draft guidance. We examined the DEP files for one Chapter 105 permit issued thus far, and found some handwritten note of a DEP staff member that said (paraphrased), that there is no need to do an alternatives analysis because that’s where the coal is.

Now obviously, if you want to mine coal that you own in Washington County, you don’t evaluate an alternative that looks at mining coal in Pike County. But when it comes to physically altering waterbodies, you do have some alternatives. You can leave some of the coal in place to support the surface. You can design the mine in such a way to avoid critical areas such as headwater springs. But if you take the view that there is no alternative but to mine the coal exactly where, and using the exact method, the coal company wants, then you are not following the regulations the same way they apply to everyone else.

But catering to mining companies is an attitude that seems to be endemic in the DEP mining program. A couple hundred miles away in York County, a stream has been disappearing through sinkholes. The cause is not known with certainty, but a nearby mine is suspected. When interviewed, a DEP mining inspector said that sinkholes were common with that type of mining, and after extolling the benefits that come from mined products, said "I’d hate to do anything that would put them out of business."
http://search.newschoice.com/ArchiveDisplay.asp?story=d:\index\newsarchives\yrk\yrkdsp\loc\20020819\1492231_tlocal.txt&source=www%2Eyorkdispatch%2Ecom&puid=2856&paper=York+Dispatch+Online   

We guess that that includes enforcing the laws. As we have been saying for a while now, the water laws apply to mining, despite any apparent loopholes present in the mining laws. DEP has been reluctant, at best, to enforce these laws.

Yet they show signs of getting it right, occasionally. A long fight to protect some Clearfield County watershed had made its way to the Pennsylvania Supreme Court.

http://www.dep.state.pa.us/dep/deputate/polycomm/update/06-07-02/0607026389.htm 

http://caselaw.lp.findlaw.com/data2/pennsylvaniastatecases/supreme/j-172-2001mo.pdf 

DEP was doing the protecting in this case, having declared the area "Unsuitable For Mining." Property owners disagreed and said that they needed to be compensated for the value of the coal if they could not mine it. They claimed this is a "takings" or appropriation of property by the government for public use without compensation. "Takings" are prohibited by the US and Pennsylvania Constitutions. The claim is a common tactic by developers, miners, etc. whenever environmental or land use regulations prohibit them from maximizing profits from their property.

A lower court prevented DEP from arguing that "pollution" was likely to result if the area was mined. "Pollution" is considered to be a "nuisance" by law. If government takes action (like prevent someone from mining coal) in order to prevent a "nuisance," then no "takings" has occurred. The coal companies believe they have the right to take their coal, despite damage to surface waters, and furthermore, they say they bought the rights many years ago, as we reported in an earlier PU [http://www.rayproffitt.org/pu/pu073199.htm].

But not if they cause pollution, which is a public nuisance. The Pennsylvania Supreme Court said this: "Furthermore, it is clear that if a regulation prohibits behavior that could be abated or prohibited by general principles of state property law, there is no need for the state to provide compensation to prevent the use."

But coal companies argue that they bought the rights to mine the coal many years ago. The Court: "The rules and understandings as to the uses of land that are acceptable and unacceptable have changed over time. The fact that sewage was once strewn into city streets does not give rise to a permanent reasonable expectation that such behavior can continue indefinitely... While the owner of land might once have been permitted to mine his land without regard to the effect that it had on public streams, as evidenced by the spoilage of ‘11,000 miles of streams’ in this country, that expectation is, and has been for some time, no longer reasonable." They conclude by saying that "if the... proposed use of the stream would unreasonably interfere with the public right to unpolluted water, the use, as a nuisance, may be prohibited without compensation."

There is so much in the last section of this decision that is worth quoting, that we could make this already too long piece twice as long. Each person in the DEP mining program ought to be required to read this decision.

Why? Other courts ranging from Pennsylvania’s Environmental Hearing Board to the US Supreme Court have ruled that "pollution" includes diminishing the amount of water in a stream or wetland to the point where the uses are impaired. In the US Supreme Court case, it was the state of Washington protecting a salmon river. Washington got legal support from 44 other states--including Pennsylvania.

Other DEP programs, such as the drinking water program, allow water withdrawals, but only if the uses would be maintained. It’s nonsense to say that the Clean Streams Law prevents a municipality from drying up a stream for drinking water but a company can dry it up for coal mining. It is equal nonsense to say that the Clean Streams Law prevents a coal company from discharging acid or metal-laden water to a small stream but does not prevent that company from drying up that same stream.

And that gets back to a proper alternatives analysis. Mine the coal? Sure, but don’t pollute the waters–and that includes drying them up. DEP doesn’t want to require alternatives analyses for underground coal mining’s impacts to surface waters. For that and other reasons, we have sent a letter to the US Army Corps of Engineers asking that they fulfill their responsibilities under Section 404 of the Clean Water Act, and ensure that coal companies secure Section 404 permits for their mining activities [link to COE letter]. Among other things, that will ensure that a proper alternatives analysis will be done.

5. Phase in This is such a egregious giveaway that it hardly warrants elaboration. DEP proposes not to bother to enforce (as they have outlined) the water regulations until mining permits are renewed (up to five years from now) or for new permits. They have not been bothering the coal companies with the water laws and don’t wish to inconvenience them with going back and protecting our waters from active mining. This can allow up to five years of additional mining without regard to our water laws. Imagine you getting a five-year exemption for some basic law (speed limit, income tax, etc.) you haven’t had to comply with because the responsible agency has been lax. Pretty exciting, isn’t it? And pretty unrealistic.

DEP needs to start enforcing the water regulations–and they need to start now.

DEP has begun to require coal companies to get the proper water law permits, although they have only done so through mining permit revisions. One Chapter 105" permit was issued earlier this year, as part of a mining permit revisions. Other mining permit revisions issued since then have conditions in them saying that the company must get the proper water law permits before conducting "full extraction" mining. Apparently the coal companies are not too pleased with the idea of complying with the water laws (even in the inadequate way that DEP outlined in its "draft technical guidance"), as two of these permits have been appealed.

http://www.ehb.verilaw.com/document_shower_pub.icl?docket_no=2002178 

http://www.ehb.verilaw.com/document_shower_pub.icl?docket_no=2002112 

We will have to wait until another PU to cover the all the stated reasons why the coal companies are appealing these permits. But in at least one appeal, one company states that making it acquire permits based on the water laws is "contrary to existing regulations and existing Technical Guidance, which the Department has consistently followed for many years." In other words, you have only enforced the mining regulations up until now, have never enforced the water laws, and it is unfair to start enforcing those water laws now.

Why is it that whenever a subsidy of a public resource like clean water (let alone private citizens’ legitimate use of it) is cut off, the cry is "Unfair!"?

We will be working with citizens and other conservation groups watching these appeals. Stay tuned.

In the meantime, we hope Mr. Miller realizes that mining can only occur if pollution does not. In order for that to occur, he needs to make some major revisions to the "draft technical guidance" so that mining companies begin to comply with the water laws the same way the rest of us do every day.

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