Take A Break, DEP!

We received an e-mail the other day that was a polite exchange between a PU reader and contributor, Steve Kunz, senior ecologist at Schmid and Company, and Harold Miller, Chief, Underground Mining Section, PA DEP. Mr. Kunz asked Mr. Miller a couple of short questions regarding the draft Technical Guidance Document (links to previous PUs). That document will outline how DEP plans on integrating the surface water laws and regulations into underground coal mining activities. We have some major problems with the draft document DEP released and hope they make some substantial changes (link to PU’s). The email exchange gives us some hints as to how DEP is leaning. We were especially interested in one point raised by Mr. Kunz and Mr. Miller’s answer:

Mr. Kunz (September 16, 2002): "Is a final TGD being prepared? If so, what is the approximate schedule for the final TGD becoming effective?"

Mr. Miller (September 20, 2002): "We are working on the final guidance, but have not established a definite date for its release. In the meantime, we are implementing Chapter 105 requirements as they relate to the protection of intermittent streams, perennial streams and wetlands in areas above active mining operations. These requirements are currently applied during the review of applications for new mines and applications for the addition of underground mining area. We also apply them in cases where restoration is necessary."

According to Mr. Miller, DEP is not waiting for the final guidance in order to apply the law. That’s great! Here is DEP, working hard to finalize the guidance, but "in the meantime" they are protecting streams and wetlands "in areas above active mining operations." Generally, government agencies won’t sharpen their pencils without a relevant guidance document. Does this mean that DEP has finally seen the light?

Unfortunately, no. There are problems with this approach– and these problems add up to an approach that disregards the law.

– what about Chapter 93, the water quality standards? It also affords protection to surface waters. Why isn’t DEP using Chapter 93 right now as outlined in the draft Technical Guidance Document?

– what about springs? Springs are "waters of the Commonwealth," and protected by Chapter 93 and the Clean Streams Law. And how can one protect "intermittent" and "perennial" streams, if one is not protecting the source of the water? We did not like the way the draft document treated springs and said so. Mr. Miller’s omission of springs hints that they will be disregarded in the final document as well.

–and what are "active mining operations?" Mr. Miller tells us in the next sentence that the requirements are "applied during the review of applications for new mines and applications for the addition of underground mining area."

This last one is the worst one. This is the infamous "grandfathering" that DEP had outlined in the draft guidance. Mining permits are renewed every five years, and therefore, mining could be planned three, four, five years down the road. DEP is saying (with no authority to do so by the way) that even though DEP has not applied the water laws and regulations until now ("oops, we forgot"), they will continue to disregard the water laws if the mining permit has already been issued. They don’t have that authority because Chapter 105.11(a) requires that permits be in place before a person encroaches upon a watercourse. Note the regulation says before, not after, and also does not say "only when DEP feels like it."

A legal principle called estoppel prevents one from saying or doing one thing (like requiring a water permit that might say "no mining" or "less mining") if one previously said or did something to the contrary (like routinely issuing mining permits that say "go ahead and mine and the heck with the springs"). This concept, estoppel, seldom if ever, applies to the government, however. The only thing that prevents DEP from saying "you need to comply with the water laws, even if we have already issued your mining permit" is the fact that DEP lacks the will. Or, let’s put it more positively, DEP remains "Open For Business" down to the last day of Ridge/Schweiker--Seif/Hess.

As we said in the first paragraph, the communication between Mr. Kunz and Mr. Miller gives some hints as to how DEP is leaning in revising their draft Technical Guidance Document:

they will continue to disregard the law

– by disregarding Chapter 93 until the final document is released, and maybe afterwards as well.

–by disregarding springs, even though they are the source of our streams and are protected in their own right by Chapter 93 and the Clean Streams Law

–and worst of all, by "grandfathering" in any mining previously permitted, although the water laws were always in force and the mining law clearly defers questions of water to the water laws!

A new administration will be taking over the executive branch of government in Pennsylvania next year. We are sure DEP’s mining program has been hard at work trying to get the final Technical Guidance Document done before this happens. Why? Because the final document is laden with policy decisions, that are questionable at best and may in fact violate the law. Let’s slip this one in under the wire!

It is not fair for DEP to saddle a new administration with a Technical Guidance Document that comes with such egregious policy decisions. This should be deferred until the next administration has a chance to examine it.

Why don’t you take a break, Mr. Miller? And the rest of the DEP Mining Program, while you are at it. Rake leaves, tune up the snow blower, bake some cookies, get your holiday shopping done. Those in Harrisburg can take a little trip to Longwall Country and check out the dry stream beds. The kids will love counting water buffaloes (local fauna) as you drive along.

Let any final decisions, especially those on the Technical Guidance Document, go until a new administration can ponder the implications, and take a good look at what you are sowing.

And what they might reap.

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