Citizens go to court over streams affected by Consol mining
July 6, 2013 4:00 AM
Kim Jones walks along one of the streams on the family's 60-acre farm. Ms. Jones said it used to be wider and deeper. Consol Mining subsided and dewatered a portion of the stream on the Jones' property in 2004; the case and others are finally moving toward legal resolution.
D.J. Jones stands in an area covered in grass and weeds growing where a stream used to run on his family's property in Greene County. Most of the running water present was from the heavy storm the night before.
Ken Jones talks about the low-level stream on his family's 60 acre farm.
By Don Hopey Pittsburgh Post-Gazette
The small stream that flowed through the farm of Kimberly and Kenneth Jones in Wind Ridge, Greene County, went dry in February 2004, shortly after it was undermined and subsided by Consol Energy's Bailey longwall mine.
Nine years later, with Consol's efforts to restore the water flow finally deemed "futile" by the state, that case and another involving five more streams dewatered due to Consol's mining, are slowly meandering toward a resolution that could limit the permitting of future longwall mining under streams.
"Having a stream on our property meant a lot to our family, but my son, who is younger, hasn't been able to experience playing in the water like my daughter did. Now we hardly ever do down there," said Ms. Jones.
In January, Consol appealed the state Department of Environmental Protection's December 2012 determination that the mining permanently dewatered the stream. And last week, the Citizens Coal Council filed two motions to intervene in Consol's appeal of the DEP determination on all six of the streams.
Amiee Erickson, executive director of the Bridgeville-based environmental organization, said it filed to intervene because "we don't want the DEP to back down" in settlement talks. Thomas Renwand, chief judge of the hearing board, has issued a stay on the case until the end of August to allow DEP and Consol time to negotiate.
"This is the first time that the DEP has determined that streams have been totally damaged by longwall mining and can't be repaired," Ms. Erickson said. "This could set a precedent. If the mining causes permanent damage then mining companies should not get another permit to undermine streams."
Consol's Bailey Mine was working in the 8-foot-thick Pittsburgh Coal seam, 300 to 500 feet below the surface in Richhill Township, Greene County, using the "longwall" mining technique. Longwall mining removes all of the coal from the seam, leaves behind no support pillars and causes immediate surface subsidence of 3 to 4 feet above the mining operation that can include cracking, deep fissures and upheaval of the streambed.
The state's mining law requires the replacement of springs and water sources and the protection of perennial stream flows.
According to case documents filed with the hearing board, Consol tried to restore stream flow by digging up the stream bed, installing liners and grouting fissures, but it didn't work. For a time the company also pumped more than 3 million gallons from a tap-in to a public water source into the stream, Ms. Jones said, but stopped doing that four years ago.
"We'd like to see the stream restored but the way the DEP explained it, there's not much more that can be done," Ms. Jones said. "And it's not fair. The state mining law says if you break it you have to fix it, but Consol knows it broke this and is fighting us about paying for it."
The other five streams are geographically close to the "Jones tributary," and also were undermined by Consol's Bailey mine. Several of those streams previously flowed into Duke Lake in Ryerson Station State Park. The popular 62-acre recreational lake was drained in 2005, and a state study later determined that Consol's longwall mining operation caused subsidence that cracked the concrete dam, necessitating the draw down of the impoundment.
In April of this year, Consol reached a settlement with the state in which it agreed to pay $36 million to cover the costs of rebuilding the dam and lake by 2017, but didn't admit to any liability and will be allowed to mine coal and drill for gas under the park.
John Poister, a DEP spokesman, said the state gave Consol every opportunity to remediate the stream damage but nothing worked to restore the flows.
"We looked at the streams and they were working on them, but finally our mining people said there was nothing they could do to bring the streams back. That was the message sent to Consol," Mr. Poister said.
Mr. Poister declined to comment on the case because it is under appeal.
In its appeal documents, Consol challenged the DEP's determinations of permanent damage to the Wind Ridge stream, a tributary of the north fork of Dunkard Fork, as well as the other streams, as "arbitrary, capricious, contrary to law, and ... an abuse of discretion."
A statement released by Lynn Seay, a Consol spokeswoman, said the company is confident its appeal will be upheld by the hearing board because its subsidence mitigation met regulatory requirements.
"Additionally," the statement noted, "new biological monitoring and analysis conducted this spring shows that all the streams in question meet or exceed aquatic life use attainment scores."
She declined further comment because the issue is in litigation.
Hearings on the appeals have not yet been scheduled.
"This is a significant finding because the DEP is acknowledging at last what appears evident to many in this area that longwall mining does cause permanent loss of streams," said Michael Fiorentino, a Philadelphia-area attorney representing the Citizens Coal Council.
"Losing streams due to longwall mining is an unacceptable price to pay," Mr. Fiorentino said. "We want to see such matters handled in a more responsible way to preserve the surface water resources of the commonwealth."