An unnamed tributary of Maple Creek may end up being the basis for a new state stream protection policy.

In years past, thirsty cows and horses would wade through the headwater flow of the tributary as it meandered through the gently sloping pasture south of Interstate 70 and east of state Route 481, near Fallowfield in Washington County.

But now it is a mining company that is caught midstream.

UMCO/Maple Creek Inc.'s High Quality Mine, a 2-year-old deep mine owned by Robert E. Murray, wants to do longwall coal mining under the tributary. It would remove 700,000 gross tons of coal from a 2,700-foot-long, 750-foot-wide "panel" of the Pittsburgh seam under the creek.

Removing all of the seam's coal by the longwall method would result in surface subsidence of three to four feet and cause the springs and creek to stop flowing.

The High Quality Mine has been allowed to longwall under other tributaries of Maple Creek during the past year by promising to mitigate subsidence damage. It's done that by injecting grout into streambed cracks caused by the subsidence and lining stream channels to help them hold water. It's also augmented the reduced stream flows by pumping water from wells and buying more than 11 million gallons from the Charleroi municipal water company.

But on Nov. 12, the state Department of Environmental Protection, which regulates mining, ruled that the creek, previously classified as intermittent, is a perennial stream. It said that entitles the creek to protection from pollution, which includes diminished flow, contained in the state's Clean Streams Law. The DEP ruling was in response to an UMCO request to reclassify the brook as ephemeral, which means it flows only when it rains.

After six months of meetings, the DEP ordered UMCO not to longwall mine under the creek. The company appealed to the state Environmental Hearing Board, asking it to immediately overturn the order and allow mining to proceed. The appeal was heard Nov. 19 and last Monday and Tuesday in Pittsburgh.

Michael Heilman, a DEP attorney, opened the hearing by saying that the department had made a mistake by not being more protective of streams in the past.

"It's changed its mind to protect a stream," he said. "We had a duty to act on the new information."

A policy changes

The DEP's action is the end result of a slowly evolving policy on stream protection which has been hastened by the change from the Republican administration of Gov. Tom Ridge to the Democratic administration of Gov. Ed Rendell.

If allowed to stand, it would have significant consequences for the mining industry. Throughout the 1990s and until 2001, the DEP paid little attention to the effects of longwall mining on streams, believing, as the mining industry said, that any damage and loss of flow was temporary. This belief persisted despite a U.S. Fish and Wildlife Service study that found longwall mining had degraded or dewatered hundreds of springs and 81 streams in Washington and Greene counties.

In the spring of 2002, the DEP signaled a shift in its policy by requiring for the first time that a mining company, RAG Emerald Resources in Greene County, obtain a separate stream encroachment permit to protect streams from subsidence. The new permit process, started after RAG's longwall operation had caused Laurel Run to go dry, required the company to mitigate the damage and post a $351,900 bond to ensure it carried out that obligation.

The latest shift, nudged along by two recent rulings of the Environmental Hearing Board and discussed for at least six months with the mining industry, moves the policy from mitigation to prevention of damage to perennial and intermittent streams and springs.

The new policy will require mining companies to conduct premining flow rate studies and detailed biological assessments before longwall operations are approved. According to testimony at the hearing, mining companies, including UMCO, understood that they need only mitigate damage involving perennial streams ---- those with a continuous flow.

Simply by showing regulators a single photograph of a dry streambed, they could get the DEP to reclassify streams as intermittent or ephemeral, classifications that required no protections.

"It's a learning process that comes after eight years of walking along streams over longwall mines," said Mark Frederick, assistant compliance manager at the DEP's district mining office in California, Pa. "Our belief in 1997 was that we did not expect to see stream impacts if the depth of [the mine] was 400 feet or more, but that's not what I was seeing."

The UMCO mine is 215 feet below the unnamed tributary, making it the shallowest longwall mine operating in the state. Most longwall mining is done 350 to 600 feet below the surface.

George Ellis, president of the Pennsylvania Coal Association, which represents 90 percent of the underground mining companies and all of the longwall operations in the state, said the policy change would put Pennsylvania coal producers at a competitive disadvantage.

"If the DEP is able to change the protection requirements it historically followed for streams that crisscross the coalfields, our concern becomes which coal reserves are mineable and which are sterile," Ellis said.

"The continuous flow definition is used because it's the same as the definitions used in other coal-producing states. If we follow a biological definition for perennial streams, Pennsylvania will be at a disadvantage compared to other states where the level of protection is less."

Out of control?

Murray, who mines 19 million tons a year in five states as the nation's 12th-largest coal producer, said he had invested almost $130 million in the mine based on a state permit issued in 1999 that allowed longwall mining. He referred to the creek as a ditch in his testimony at the hearing.

He said the DEP order "was an illegal action without due process," issued by an "out-of-control bureaucracy directed by people with long environmental careers," an apparent reference to DEP Secretary Kathleen McGinty, an environmental official in the Clinton administration.

The DEP order prohibiting longwall mining allows Murray to continue to mine using the room-and-pillar method, which minimizes subsidence and stream damage. But he said that method was slow and uneconomical. The High Quality Mine's longwall operation can carve out 12,000 tons a day, compared with 1,000 tons for a continuous mining machine used for a room-and-pillar operation.

Murray laid off the mine's 495 employees, including 308 union miners, after getting the DEP order and said he might be forced into bankruptcy by creditors.

John Jevicky, attorney for UMCO, said the DEP had changed both its stream assessment criteria and its attitude toward mining.

"As an industry, we want consistency and certainty as to how the regulations are applied," Jevicky said. "The industry will be thrown into disarray because the whole industry will be prohibited from longwall mining under streams."

Jeffrey Ludwikowski, another UMCO attorney, said the DEP had the burden to show it has the authority to apply the Clean Streams Law instead of the state mining law regulations. He said the stream uses protected by the Clean Streams Law were subject to other mining laws that allow mitigation of damage and that the DEP had followed those laws in the past.

But Heilman said UMCO's shallow longwall operation would completely dry up the springs and the brook, killing aquatic bugs, fish and wetland species.

"We're not talking about nibbling around the edges here, This is the full Monty," he said, adding that the Clean Stream Law should be applicable to mining companies, just as they are to surface landowners.

"We don't contest that UMCO can create a channel to convey water, but it's not the Clean Conveyance Law, it's the Clean Streams Law. This is a nice stream. It supports fish, bugs and wetlands, and we have few enough of those left."

Administrative Law Judge Bernard A. Labuskes Jr. is expected to rule Tuesday.