A new bill introduced in the Pennsylvania Senate would fundamentally weaken protection of surface waters. Senate Bill 624 amends existing law by removing presumptive liability for damages to streams and wetlands if the companies’ own pre-mining estimates did not predict that the damages would be permanent.
Currently the state’s mining law states that underground mining must be conducted in a way that prevents damage to streams and aquifers; if damages do occur, operators are required to mitigate them. The problem is that, to date, there are several documented instances were operators have been unable to restore the use and function of surfaces waters and wetlands impacted by underground mining. A report performed for DEP in January of 2015, 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.
SB624 substantially raises the threshold to challenging the issuance of a mining permit with respect to potential aquatic resource impacts. In practice, it very likely means that any permit challenges will have to wait until after the damage occurs.
To compound the issue, SB624 retroactively applies 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.
Given that there is ample evidence that surface waters and wetlands are being adversely affected, likely permanently, by current underground mining operations, the legislature should be looking to strengthen – not weaken – protections. SB624 is a step in the wrong direction.