A blockbuster new independent study released today by the national Citizens Coal Council underscores one of our nation's most overlooked environmental crises and darkest energy secrets in Pennsylvania and a dozen states in the heartland and the West: Flawed state regulatory policies for underground longwall coal mining have not only failed to protect American citizens and their private property and critically important waterways, but stand in violation of state constitutions.
To the scourge of strip-mining and mountaintop removal and natural gas fracking and oil drilling, let's now add longwall mining -- the process of intentionally pulling underground pillars in coal mines and allowing for huge drops of subsidence that has left private homes and farms and once productive farmland in ruin, and contaminated or drained lakes, crucial watersheds and streams.
Nowhere has longwall mining been as blatantly ruinous as in Pennsylvania, where a Big Coal-backed and highly controversial "Act 54" in 1994 altered the state's 1966 law, which mandated the "prevention of damage from mine subsidence." Since then, Act 54 has allowed coal companies to circumvent "prevention" for the more ambiguous "restoration of damage from mine subsidence."
According to Stephen Kunz, senior ecologist for Schmid & Company, and the report's author, "The inevitable conclusion from our analysis of the DEP's five-year review is that longwall mining as currently practiced in Pennsylvania under Act 54 is highly destructive and is not compatible with environmental protection, landowner protection, or taxpayer protection."
Schmid and Company's study, The Increasing Damage from Underground Coal Mining in Pennsylvania: A Review and Analysis of PADEP's Third Act 54 Report, examined 50 underground mines across the state and concluded:
1. Act 54 is fundamentally flawed because it allows certain impacts to occur without any compensation or restoration. When Act 54 removed the protections formerly afforded to structures, it removed the protections that indirectly had been provided to streams, springs, wetlands, aquifers, and other local and regional resources. Since there are no Act 54-mandated remedies for these collateral damages, the full scope of mining impacts is not being adequately tallied and analyzed by PADEP. Headwater streams, aquifers, and other water resources are being adversely affected by underground mining, but regional and cumulative hydrologic impacts are not being inventoried or addressed. Impacts are occurring to public and community resources, but restoration or compensation is being provided only for certain damages to some individual landowners.
2. Act 54 is fundamentally flawed because, where it requires compensation or restoration, those remedies are incomplete and taking unacceptably long times to be realized. "Resolution" of impacts often is partial or incomplete (as when metered public water is brought in to replace previously unlimited well water). Instead of being repaired, properties with damages to structures, land, or wells often are purchased by a mine company, causing neighborhood and community disruption. Resolution of impacts can take many years to be finalized.
3. Act 54, as presently administered by PADEP, appears to be in direct conflict with Article 1, Section 27 of the Pennsylvania Constitution. When Act 54 was passed, it may have been unclear how extensive the impacts would be, or that the mandated remedies would not cover many significant collateral effects. The accumulated knowledge and experience gained over the last 16+ years, and especially in this latest Act 54 Report, demonstrate that damages from longwall mining are increasing, and that there exist practical alternatives which make those impacts unnecessary. In light of these facts, the residents of the coalfields and the public resources of the Commonwealth are being inequitably affected.
"It is now crystal clear that Act 54 is fundamentally flawed," announced Aimee Erickson, Executive Director of the Citizens Coal Council, in releasing the study. "Pennsylvanians and our environment have endured widespread permanent mining damage under Act 54 for 16 years," Erickson added, "and it's time for it to stop."
I interviewed Erickson on the ramifications of this study on Pennsylvania and the other 12 states that allow longwall mining, and the current crisis in the coalfields today.
JB: Can you give us a brief overview of Act 54 and how it figures into state and federal oversight.
AE: Pennsylvania, through its Department of Environmental Protection ("DEP") applied for and accepted primary responsibility from the U.S. Department of the Interior, Office of Surface Mining Reclamation and Enforcement ("OSMRE"), for administering the federal Surface Mining Control and Reclamation Act (SMCRA"). PA's program therefore must be consistent with, and no less stringent than, federal law. OSMRE retains oversight responsibility, and PA's Act 54 has been found by OSMRE to be inconsistent with federal requirements, particularly in regard to repairing damages to homes and structures, and replacing water supplies that have been destroyed by subsidence. Regardless, PA's provisions in Act 54 which allows such damage and destruction, especially to our Commonwealth's water resources, are unconstitutional violations of Article 1, Section 27, of the Pennsylvania Constitution ("Environmental Rights"):
The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and aesthetic values of the environment. Pennsylvania's public natural resources are the common property of all the people, including generations yet to come. As trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all the people.
JB: How do PA's longwall regulatory measures compare with other states? And are there any federal agencies that handle longwall mining and ramifications?
AE: CCC is now preparing for conducting a state-by-state comparision, looking at states such as Illinois, Virginia, West Virginia, Ohio, Kentucky and Tennessee. OSMRE oversees some of the subsidence effects of underground coal mining, but just like PA and other states, it is poorly done or not even done at all in terms of regional, basin-wide, and cumulative impacts to the nation's precious water resources and rural communities.
JB: Why did CCC commission this study? Has the PA DEP -- or any other state or federal agency -- ever done an internal assessment on the environmental impact of longwall, especially in terms of cumulative hydrologic impacts to aquifers?
AE: CCC recognized that this latest DEP 5-year report contained a lot of data and information, but that it failed to draw any conclusions or make any recommendations about how well Act 54 was working or not. CCC thus hired S&C to distill the information, put it into context, and make sense out of it in a way that would set the groundwork for practical improvements.
We are not aware of any state or federal agency that has done any internal assessment. However, CCC's July 2010 Report, "Protection of Water Resources From Longwall Mining Is Needed in Southwestern Pennsylvania," was an assessment of that kind, having examined more than 75,000 pages of very recent PADEP coal mine permit and enforcement files for 3 of the 8 active longwall mines. The findings of our July 2010 Report show that water resources are not being protected, not even being accurately identified.
That study is important because it overlaps the latest Act 54 review period, it examines files that the Act 54 report should have reviewed but didn't, and it included 2+ full years when the newest DEP technical guidance document ("TGD") requirements for water resource protection were being fully implemented -- yet it concludes that the TGD requirements are NOT being applied and enforced as intended, and so the TGD paper requirements provide just a smoke screen that protection is being provided or will lead to improvements in the years ahead.
JB: Stephen Kunz, senior ecologist for Schmid & Company, and the report's author, concludes that longwall mining is "highly destructive and is not compatible with environmental protection, landowner protection, or taxpayer protection." Do you consider this a breakthrough study, or simply a confirmation of other studies and data?
AE: This independent Act 54 report and analysis, exposes for the first time just how destructive longwall mining as currently practiced really is -- that the destruction is unnecessary, and that Act 54 does not address all of the impacts or prevent damage to homes, farms, communities, and water resources as it should.
The data have been out there for a long time, but the recent S&C analyses (both this Act 54 report and the July 2010 report) are the first to connect the dots, make meaningful observations and conclusions, and discuss the PA mining regulatory program in the broader context of Act 54, the Clean Streams Law, and the PA Constitution. Nearly all other analyses have been done by or commissioned by DEP, and they tend to represent the agency and industry bias that longwall mining is SO important to the economy of PA that widespread damage to the environment - if they would acknowledge it at all, which they don't - must be overlooked or otherwise tolerated. That regulatory and industry bias grossly exaggerates and overstates the significance of coal mining to the economy of Pennsylvania, especially when compared to greater contributors to Pennsylvania's economic strength and sustainability, such as agriculture, health care, and tourism -- which, by the way, are adversely affected by current longwall coal mining practices.
Kunz has provided review and comments of previous Act 54 reports and other DEP-commissioned studies that purport to show that everything is just fine. But for far too long the public has been told by DEP that everything is under control, that the few problems that people have experienced are being addressed, and that any other problems will be fixed "in the next 5-year period". The CCC Report shows that not only are the problems not being fixed, they are getting worse. We cannot ignore reality any longer and leave the future of our rural residents, our communities, and our environment at the mercy of unfounded hopes for improvements that never seem to come.
JB: In light of this new study, what is the next step for CCC?
AE: We are not saying that longwall mining, per se, should be prohibited. But the way it is being done today in PA, with no attempt to avoid damage and with only some, but not all, of the damage that is occurring being addressed, and even then being addressed only partially, that cannot be tolerated any longer.
This Act 54 report shows that there is a viable mining alternative to longwall -- room-and-pillar -- which does not have nearly as much impact when done right, and the impacts are resolved much more quickly. It also puts more people back to work, helping local economies as this country meanwhile continues to transition to less dirty and damaging carbon-based fuels for steel making and electric power generation.
We want to see Act 54 revised to take everything it should into account -- to cover all of the impacts that are occurring, individually and cumulatively. A new law needs to bring back upfront protection for all surface resources that effectively was in the 1966 mining law -- as well as protect the water resources and aquifers as required under the PA Clean Streams Law and Article 1, Section 27 of the Pennsylvania Constitution. Pennsylvania's General Assembly needs to concentrate on avoiding and minimizing impacts, rather than allowing the damages and trying (or simply hoping) to fix things up afterwards.