Meet The New Boss

We’ve had some conversations recently with DEP staff on the protection of springs and streams from longwall coal mining.

Our contention remains that the Clean Streams Law, not the mining laws, ought to be the standard when it comes to protecting streams, springs, wetlands and ponds, because that’s what the mining laws say. The Federal law, "SMCRA,"("Surface Mine Control and Reclamation Act"), says that nothing in SMCRA will supersede, amend, modify or repeal the Federal Clean Water Act, and the analogous state laws. The state law, the Subsidence Act ("Bituminous Mine Subsidence and Land Conservation Act") says that nothing in the Subsidence Act supersedes the state’s Clean Streams Law or the regulations that implement that law. This passage was added in 1994 by "Act 54," the amendments that facilitated longwall mining in Pennsylvania [http://www.rayproffitt.org/pu2000/12202000.htm].

This means coal mining, like other activities in Pennsylvania, is subject to the Clean Streams Law, and it should go without saying that the law ought to be enforced the same way for everyone. Landowners would not be allowed to bulldoze a stream or remove all of its water without protecting its integrity. How can a company that owns five feet of coal a couple hundred feet below the surface be allowed to wreck streams? If you owned a spring, would it be legal for a neighbor to show up and take the water? No--yet the coal companies have been doing essentially that (except they aren’t even your neighbor, unless you own land in Germany).

The former DEP Secretary, David Hess visited a dried up stream in Greene County in November 2001 and said then that DEP was going to do things differently. Progress since his visit has been slow; no surprise as the Hess DEP was quicker on photo-ops and rhetoric than it was on protection [http://www.rayproffitt.org/pu2002/11232002.htm    http://www.rayproffitt.org/pu2002/12122002.htm ].

Last year, DEP came out with a new "technical guidance document" which outlines how they will protect surface waters from mining [http://www.rayproffitt.org/pu2002/04042002.htm]. At the same time, they issued a couple of mining permits that said longwall mining must be conducted in conformance with the Clean Streams Law. The coal companies weren’t happy and appealed the permits (even though one was issued without much regard to the streams that could be damaged). [http://www.rayproffitt.org/pu2002/08302002.htm].

On the legal front, so far, so good. On points, DEP and citizens have won most, but the legal fight will probably continue (it seems the coal companies employ as many attorneys as miners). In the meantime, DEP is coming out with yet another draft technical guidance, taking into account the comments on first draft and the legal decision, and we have some hints from DEP what it will say.

SMCRA has a provision that says that mining must "minimize disturbances of the prevailing hydrologic balance." Conversations with Federal regulators at the Office of Surface Mining indicate they think that drying up a single spring is not a disruption in violation of the law, although at the same time they are uncertain about the magnitude of a disturbance that would violate the law. In other words, they know what doesn’t violate the law, but they aren’t sure what does.

Our conversations with DEP indicate that they are grasping at this straw. Because the "prevailing hydrologic balance" standard contemplates the loss of individual springs, then that means that the mining that results in loss of springs is legal, they say. However, that disregards the fact that the "prevailing hydrologic balance standard" comes out of SMCRA, which cannot trump the Clean Streams Law. If the SMCRA standard turns out to be less protective than the Clean Streams Law, the Clean Streams Law standard wins.

The new DEP Secretary, Kathleen McGinty participated in one discussion we (along with other mining reform groups) had with DEP staff. Secretary McGinty, being new, has had to rely on her staff on an issue as complex as mining and the various laws that govern it. We hope, however, that as she hears views from outside the agency, she tells the Mining Program to stop looking for loopholes and start obeying the law. One indication will be the new "technical guidance document."

The Who sang, "Meet the new boss... same as the old boss." We will see if the McGinty DEP actually means to start protecting surface waters the way the law prescribes, or... we simply met the old boss. We will know when the new guidance document is released.

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