SECTION V.
WETLAND PROTECTION IN MINING REGULATIONS
The environmental
regulations that apply specifically to underground coal mining activities
are set forth in the following chapters of Title 25 Pennsylvania Code:
-
Chapter 86:
Surface and Underground Coal Mining: General
-
Chapter 89:
Underground Mining of Coal and Coal Preparation
Facilities
-
Chapter 90:
Coal Refuse Disposal.
Underground mining
activities regulated in accordance with Chapters 86 and 89 include both
the "[s]urface operations incident to underground extraction of coal..."
and the "[o]peration of a mine...and any other work done on land or water
in connection with a mine." The general impression gained from examining
the PADEP regulations is that they address room-and-pillar mining more
adequately than longwall mining. Subsidence is an inevitable aspect of
the longwall method of mining, absent the effective refilling of the void
left where coal has been removed. In contrast to room-and-pillar mining,
the subsidence associated with longwall mining is purported to be "generally
uniform and more predictable" (EIA 1995). This characteristic is viewed
as an advantage of longwall mining to the extent that the effects of subsidence
can be anticipated, affected parties warned when earth movement is expected
to peak, and impacts somewhat remedied or compensated by the mine operator.
Unlike the localized and accidental subsidence from room-and-pillar mining,
the intentional subsidence from longwall mining affects---unevenly---the
entire landscape of tens of thousands of acres.
That the surface
effects of subsidence to some extent are factored into the overall planning
of a mine is evident from the attention paid by mine operators in negotiations
with homeowners above a longwall panel before and after mining has moved
through an area. Because subsidence is such an intrinsic part of longwall
mining, and because its expression on the surface is virtually assured,
its effects on regulated wetlands and streams should be scrutinized during
mine planning and design, just as are its effects on buildings and roads.
Instead, wetlands are routinely ignored.
As discussed
in Section III above, PADEP's Chapter 105 regulations define an "encroachment"
as any "structure or activity which changes, expands or diminishes the
course, current or cross section of a watercourse, floodway or body of
water [including wetlands]." Thus, any proposed activity which directly
disturbs a wetland, or which changes its hydrology, by law must undergo
regulatory review. Adverse effects on wetlands are supposed to be mitigated
through conditions of a PADEP permit, once the unavoidability of damage
has been established and the damage has been minimized to the extent practicable.
Existing uses of wetlands and other surface waters are required to be maintained
and protected [25
Pa. Code 93.4a(b)].
Full compliance
with all of the requirements of the Dam Safety and Encroachments Act, including
its wetland provisions, is mandated by the Clean Streams Law as well as
by Pennsylvania coal mining laws. Similarly, the coal mining regulations
consistently mandate compliance with Chapter 105 and Chapter 93 for all
mining activities. Yet for the past twenty-five years these laws have been
ignored by the BMR with respect to wetlands when permitting longwall mines.
Some of the
specific wetland protection provisions of the Chapter 105 regulations have
been incorporated directly into PADEP coal mining regulations and/or into
the permit application form(s) for new coal mining activities. Numerous
statements in the mining regulations and in the mine permit application
forms are clear in their intent that the policies and requirements of the
Chapter 105 regulations are to be followed by mine operators. Actual performance,
however, falls far short of implementing this intent. A few examples drawn
from files at the McMurray District Mining Office illustrate this failure
in the subsequent sections of this report.
What the Regulations Require
| Approval
of an underground mine permit is contingent upon compliance with the substantive
requirements of the Clean Streams Law and the Dam Safety and
Encroachments Act according to the mining regulations. |
The coal mining
regulations make many direct references to Chapter 105, such as the following:
Flow
from perennial and intermittent streams within the permit area may be diverted
if the diversions ... [c]omply with other requirements of this chapter
and Chapter 105 ....
§89.56 (stream
channel diversions)
§90.105
(stream channel diversions)
[A]n
application shall contain the necessary information to demonstrate how
each proposed water obstruction and encroachment will meet the requirement
of Chapter 105 ....
§90.36 (stream diversions,
water obstructions and encroachments)
Crossing
of a perennial or intermittent stream shall be made using bridges, culverts
or similar structures. Bridges, culverts or other encroachment or water
obstruction shall meet the requirements of Chapter 105....
§90.134(b)
(Haul roads and access roads: general)
[S]tream
crossings [other than fords] shall be made using bridges, culverts or other
structures designed, constructed and maintained in accordance with recognized
engineering standards and Chapter 105....
§89.26(f)3
Large
impoundments shall be designed, constructed and maintained in accordance
with the Dam Safety and Encroachments Act (32 P.S. Sec. 693.1 -
693.27) and Chapter 105…
The very first
criterion for approval of a mining permit, as listed in §86.37 [Criteria
for permit approval or denial], is that:
(a)(1)
The permit application is accurate and complete and that the requirements
of the Acts and this chapter have been complied with. (emphasis
added)
"Acts" are defined
at §86.1. [Definitions] as including:
(i)
The Surface Mining Conservation and Reclamation Act (52 P.S. §1396.1
- 1396.31).
(ii)
The Air Pollution Control Act (35 P.S. §§ 4001 - 4015).
(iii)
The Clean Streams Law (35 P.S. §§ 691.1 - 691.1001).
(iv)
The Coal Refuse Disposal Control Act (52 P.S. §§ 30.51
- 30.66).
(v)
Article XIX-A of The Administrative Code of 1929 (71 P.S. §§
510-1 -- 510-1081).
(vi)
The Bituminous Mine Subsidence and Land Conservation Act (52 P.S.
§§ 1406.1 - 1406.21).
(vii)
The Dam Safety and Encroachments Act (32 P.S.§§ 693.1
-693.27).
(viii)
The Solid Waste Management Act (35 P.S. §§ 6018.101 -
6018.1003).
Inasmuch as the
Clean Streams Law and the Dam Safety and Encroachments Act
are listed, it is clear that any mine permit approval is contingent upon
compliance with the substantive requirements of those laws. Thus, there
is a clear, direct, and mandatory obligation for wetland protection within
the mining regulations themselves.
Furthermore,
Section 89.7(d) [Applicability] states that
The
development, design, implementation and approval of these [underground
mining] plans does not relieve the operator of the responsibility to meet
the performance standards of this chapter and the requirements
of the acts. (emphasis
added)
Clearly, by regulation
new mines are to be developed and operated in accordance with, among other
pertinent legislation, the Clean Streams Law and the Dam Safety and Encroachments
Act. This obviously includes wetland protection from unregulated encroachments
and from degradation.
Another clear
reference to wetland protection is provided in §89.74(a)(2), which
specifies the information to be provided in an underground mining application
regarding fish and wildlife resources, as follows:
Site-specific
resource information necessary to address the respective species or habitats
shall be required when the proposed permit area or adjacent area is likely
to include one or more of the following:...(ii) Habitats of unusually high
value for fish and wildlife such as important streams, wetlands,riparian
areas, cliffs supporting raptors, areas offering special shelter or protection,
migration routes, or reproduction and wintering areas.(emphasis added)
The cited section
defines "wetlands" as one of the "habitats of unusually high value for
fish and wildlife". This characterization is supported by a vast array
of scientific data. As previously noted, wetlands frequently serve as critical
reproduction and wintering areas.
The subsequent
section, §89.74(b), requires that impacts during mining operations
on species and habitats (including wetlands) identified in §89.74(a)
be minimized (not an optional or discretionary action):
[T]he
operator will minimize disturbances and adverse impacts on fish and wildlife
and related environmental values … during the underground mining activities.
The same subsection,
§89.74(b), requires that an enhancement plan be prepared by the applicant
and that BMR provide a copy of that plan to the Pennsylvania Game Commission
and to the Pennsylvania Fish and Boat Commission. The plan is to include
measures to be used during reclamation and post mining "to develop aquatic
and terrestrial habitat" including "restoration of streams and other wetlands".
A related
passage at §89.26(c) similarly requires that
roads [used in coal exploration
or underground mining activities] shall be designed, constructed and maintained
so that they do not cause damage to fish, wildlife and related environmental
values.
Likewise, §89.65(a)
states that
The
operator shall to the extent possible, using the best technology currently
available, minimize disturbances and adverse impacts of the activities
on fish, wildlife and related environmental values, and achieve enhancement
of the resources when practicable.
Although the
above passage mandates that impacts on fish and wildlife and related values
be minimized, it is interesting to note how this requirement is a dilution
of what it was prior to the 1998-1999 changes to the Pennsylvania mining
regulations. The qualifier "to the extent possible" was added and the word
"minimize" replaced the word "prevent".
Clearly, wetlands
are environmental resources that are intended to be protected in their
own right, and also as high value habitat for fish and wildlife, in the
course of the design, operation, and reclamation of underground coal mines.
The regulations are clear that the use of best technology currently available
is mandatory, and mere cost is not a basis for non-compliance. Yet one
would never guess this from a review of actual BMR longwall mine permit
conditions or from field observations in mined areas.
Such minimal
attention as BMR does accord to wetlands is confined to the effects of
"surface mining activities". This key term is narrowly defined at §86.1
to exclude the surface effects of subsidence. Nevertheless, whatever exemption
from regulating subsidence effects that BMR may infer from SMCRA
and Pennsylvania mining laws, the obligation to enforce wetland protections
through 25 Pa.Code Chapters 93 and 105 remains as a result of the
Clean Streams Law, the Dam Safety and Encroachments Act, and the federal
Clean Water Act.