On its silver anniversary, Pa’s disastrous underground coal mining law has left a tarnished legacy | Opinion

August 5, 2019 6:30 am

By Aimee Erickson, Stephen P. Kunz and Michael V. Nixon

This Aug. 21 marks the the 25th anniversary of Pennsylvania’s disastrous Act 54 of 1994, which removed basic environmental protections from the Commonwealth’s underground coal mining law.

It’s a tarnished silver anniversary. Since Act 54 went into effect, the state Department of Environmental Protection’s regulation of underground longwall coal mining has been a catastrophic failure.

For nearly three decades before 1994, a Great Society-vintage law known as the “Bituminous Mine Subsidence and Land Conservation Act of 1966” protected our surface waters, aquifers, springs, historic farmlands, and people’s homes from subsidence damage caused by underground coal mining.

Those property rights and environmental protections were removed by the coal industry’s undermining in Harrisburg of Pennsylvania’s laws that protected the Commonwealth’s waters and people’s homes, farms, and native water supplies.

With the passage of Act 54 in 1994, widespread environmental and property damage from underground coal mining subsidence became permissible, with a weak “If you break it—and if we catch you—you have to at least try and fix it” scheme inked into law.

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Southwestern Pennsylvania’s rural agricultural landscapes and communities are now littered with broken and abandoned houses that stand like ghostly mausoleums.

Photo from PA DEP Citizens Advisory Council October 4, 2011 tour of longwall mining-impacted areas in Greene and Washington Counties, PA. (Credit: Aimee Erickson, Citizens Coal Council)

None of the fractured streams have ever been actually repaired — because it’s impossible. It’s not like fixing a broken sidewalk or retaining wall. It’s a phony pretense invented by the coal industry’s lobbyists and their willing accomplices in the legislature 25 years ago.

That radical change to environmental protection law in Pennsylvania was accomplished with a bunch of false assurances, deal-making, and arm-twisting, so that the coal companies could increase their profits by using giant longwall mining machines — instead of the workers who had been essential to the conventional room-and-pillar method of coal mining for decades.

As a result, environmental protection, justice, and fairness, are as elusive as the coal mining companies’ accountability and responsibility under law.

Irreparable longwall coal mining subsidence damage to the Dunkard Fork of Wheeling Creek in Greene County, PA. (Photo credit: Mark Hersh, Raymond Proffitt Foundation, April 2003)

One of the greatest frustrations of the coal-field residents of southwestern Pennsylvania is that the widespread damage being inflicted on them, their families, and the natural resources of their communities keeps increasing rather than decreasing.

And this, with legislation now before the state Senate (SB763), the coal industry is again attempting to  take away even more from Pennsylvania’s homeowners, farmers, outdoor enthusiasts, rural communities, and nature herself.

In the new era of climate change, the legislation sponsored by Sen. Camera Bartolotta, R-Washington, seeks to take away any publicly accessible proof of continued destruction by longwall coal mining, and interfere with the important advisory role of the Pennsylvania Department of Environmental Protection’s Citizens Advisory Council.

Bartoiotta’s bill fails to accurately identify all the resources at risk, to monitor and assess all the adverse impacts, and to adequately provide the protections that are supposed to be ensured by Act 54, by the Clean Streams Law, and environmental protections enshrined in the Pennsylvania Constitution.

A major requirement of Act 54 is that the DEP must prepare a report every five years, evaluating the impacts of underground mining on structures, water supplies, and the Commonwealth’s water resources.

The reports have been required to be submitted to the DEP’s Citizens Advisory Council, the governor, and the Republican and Democratic leadership of the General Assembly for oversight of the law’s adequacy and effectiveness.

The four Act 54 Five-Year Reports completed to date (1999-2014) demonstrate that the law has been a catastrophic failure, except for the handful of big coal companies who have exploited the longwall mining allowed by Act 54.

Attempts to repair subsidence damage doesn’t work for historic 18th- and 19th-century homes and modern working farms — much less for complex natural systems like freshwater aquifers, headwaters and wetlands, and surface streams.

The Act 54 5-year report paints a disturbingly detailed picture:

  • Total reported effects on structures, water supplies, and land have increased every period.
  • About 75 percent of all impacts are associated with longwall mining, even though there are many more room-and-pillar mines which continue to be mined profitably.
  • Less than 10 percent of damages to homes and water supplies are actually repaired. Most issues are “resolved” by buyouts or compensation settlements subject to secret non-disclosure agreements.
  • Damages that are repaired or otherwise resolved take a very long time. A quarter of water supply impacts took up to more than four years to be resolved during the 2008-2013 review period.
  • From 2008-2013, 70 percent of streams undermined by longwall mines experienced pooling or dewatering, but no such stream impacts were reported for room-and-pillar mines.

The DEP’s Citizens Advisory Council has sought to use the findings of the 5-year reports to highlight areas where practical changes would be most effective.

In a July 2015 letter, the council’s chairperson, William C. Fink made it painfully clear to then-DEP Secretary John Quigley, noting that there were “clear deficiencies of [Act 54] and its implementation that deserve attention.”

Yet, the DEP and the General Assembly continue to ignore those problems, even those that have been raised repeatedly. Act 54 should not be amended to help the coal industry avoid responsibility and public accountability. Act 54 needs to be repealed and replaced.

Act 54 Reform needs a good law that will respect Pennsylvanians’ Environmental Rights and comply with the Commonwealth government’s fiduciary duties as trustee of Pennsylvania’s historic and natural resources.

Gov. Tom Wolf and the General Assembly must return protection to Pennsylvania’s environment and livability to southwestern PA’s rural agricultural communities. Pennsylvania needs to recover from the coal industry’s 25 years of ransacking our homes, sylvan landscapes, and precious waters.

Aimee Erickson is executive director of the national non-profit Citizens Coal Council, based in Washington County, Pa. Stephen P. Kunz is an ecologist with Schmid and Company of Media, Pa. Michael V. Nixon is an environmental lawyer and consultant based in Portland, Ore.

(Disclosure: James A. Schmid, Ph.D., President of Schmid and Company, is a current member of PA DEP’s Citizens Advisory Council. Mr. Schmid was appointed by Governor Tom Wolf in August 2017. His term expires January 17, 2020).

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