June 19, 2017
To: Members of the House Environmental Resources & Energy Committee
From: Pennsylvania Environmental Council
Re: Consideration of Senate Bill 624 (P.N. 697) and House Bill 1333 (P.N. 1652)
The Pennsylvania Environmental Council (PEC) urges you to oppose Senate 624, and oppose House Bill 1333 as written, when they are considered by the Environmental Resources and Energy Committee today. In short, both bills threaten the incurrence of additional pollution incidents and costs by the state.
A detailed explanation for our position on these bills is provided immediately below. Thank you for your consideration.
Senate Bill 624
Senate Bill 624 is a reaction to an order by the Environmental Hearing Board to limit part of a longwall mining permit due to potential adverse impacts to surface waters. The broader case, involving several permit appeals, is still pending before the Environmental Hearing Board.
Senate Bill 624 would allow the exemption of predicted, mining-induced impacts to surface water uses from existing protection requirements under state law. This proposed exemption would alter a long-standing framework that was formulated by a group of mine operators, environmental groups, community representatives, and legislators in 1994 that advanced amendments to the state’s Bituminous Mine Subsidence and Land Conservation. PEC was one of those stakeholders. The amended law, commonly referred to as “Act 54”, was intended to ensure that streams and other aquatic resources are protected from substantial or permanent damage. The 1994 amendments provided flexibility by allowing temporary, partial impacts, so long as an operator maintained surface water uses through mitigation and repair.
Mining impacts to water resources have proven to be a significant issue; more than twenty years of study (required by Act 54) have demonstrated that deep mining results in long-lasting, potentially permanent, adverse impacts to surface waters despite planning and mitigation efforts. The most recent report, undertaken by the University of Pittsburgh and covering mining activity between 2008 to 2013, found that 40 percent of the streams undermined by deep coal mining (39 of 96 miles) suffered flow loss or pooling that had an adverse impact on aquatic life, pH, and conductivity in the streams. Further, 8 of 55 stream segments identified in a previous report had yet to recover from the impacts of mining, despite ongoing attempts at mitigation.
Senate Bill 624 would weaken the protections intended by Act 54 and currently provided under state law, and substantially impede the opportunity to challenge the issuance of a mining permit with respect to potential water resource impacts before damages occur.
To compound the issue, Senate Bill 624 would retroactively apply to “all permits issued under the act that were the subject of an appeal heard by the Environmental Hearing Board after June 30, 2016.” Retroactively applying a new standard to any action by a state agency involving a private company – particularly one that is already subject to administrative adjudication – is extraordinarily rare and raises further questions. The permit at which this legislation appears to be directed involves mining adjacent to and underneath Ryerson State Park, the only state park in Greene County, where prior mining damaged a dam and resulted in the permanent draining of Duke Lake.
State mining law has already been changed to accommodate the mining industry. Time and study have shown that there are significant, and likely permanent, damages to surface waters resulting from underground mining. Senate Bill 624 only creates the likelihood of even more consequential damages. This proposed legislation runs counter to the Clean Steams Law and Pennsylvania Constitution – if anything, protections under the law should be strengthened.
House Bill 1333
HB 1333 would expand the allowance for “temporary” cessation of mining activities.
PEC recognizes the current market challenges faced by the coal industry, and understands the limited purpose of this legislation. At the same time, we are concerned about the risk of adding to Pennsylvania’s coal mining-related environmental liabilities if appropriate safeguards are not put in place during cessation of operations. Without safeguards, these liabilities could ultimately be borne by Commonwealth taxpayers if an operator elects not to restart mining activity or declares bankruptcy.
The following changes should be made to the bill:
- Ongoing Site Maintenance and Safety
If operators are to be given additional latitude – potentially several years – to leave sites inactive, the legislation should include a requirement that a Temporary Cessation Site Stabilization and Safety Plan be submitted to and approved by the Department of Environmental Protection (DEP).
At a minimum, the Plan should address:
- Maintenance of erosion and sedimentation control and containment measures to ensure their proper functioning;
- The maintenance of other required measures to monitor both surface and ground water to ensure their proper functioning;
- The maintenance and continued operation of any required water treatment or other pollution prevention measures;
- Temporary reclamation measures needed to stabilize the site for the estimated period of cessation of operations to prevent pollution from going off-site;
- The submission of a final, detailed site reclamation design plan that could be immediately put out to bid by DEP in the event the operator chooses not to reactivate the site;
- Containment of any potentially environmentally harmful waste solids or liquids maintained on site;
- Public safety safeguards to prevent public trespass and the creation of attractive nuisances, which could lead to bodily injury or contamination incidents on site or damage to pollution control measures, equipment or other features or buildings remaining on the site during cessation;
- Provisions for regular inspection and reporting to assure the terms of the Plan are being met, as well as immediate notification requirements if measures taken under the Plan are damaged or not functioning, or other provisions of the Plan are not being met or will not be met by the mine operator in the future; and
- The provision of financial assurance to cover the estimated ongoing costs to maintain the above measures and controls in the event the operator is no longer able to perform them. (please see below)
- Financial Assurance
The most recent downturn in the industry, resulting in numerous bankruptcies, underscores the stark reality that securing sufficient funding for maintaining and restoring sites is critical. While Pennsylvania law requires mine operators to post financial assurance for the final reclamation of a mining site, the cost of fulfilling commitments under a Temporary Cessation Site Stabilization and Safety Plan is not covered and would be left to taxpayers if the mine operator cannot meet those commitments.
Recognizing this, any operator who files a Temporary Cessation Site Stabilization and Safety Plan should be required to submit financial assurance to DEP sufficient to cover the ongoing costs of that Plan. We would anticipate that financial mechanisms, similar to those now in place for final site restoration, could be adapted for this purpose.