New front opens in battle over mining near Ryerson Station State Park
The controversy over Consol Energy’s activity in the vicinity of Greene County’s Ryerson Station State Park continues, after an appeal of another decision by the state Department of Environmental Protection.
The Center for Coalfield Justice in Washington, Pa., and the Sierra Club are asking the state Environmental Hearing Board to halt a DEP revision of Consol spinoff CNX Coal Resources LP’s permit for that mining.
“DEP has issued a permit revision to Consol Pennsylvania Coal Company LLC’s Bailey Mine permit for full extraction mining in Richhill Township,” DEP press secretary Neil Shader said Dec. 16. “Consol Pennsylvania Coal Company LLC” or CPCC is the legal name of the Southpointe-based company in the EHB proceedings.
“The permit revision authorizes mining underneath a portion of Polen Run and Kent Run,” Shader said. “The permit revision also includes requirements for protection and restoration of both streams.”
CCJ and the Sierra Club see this as an end run around their bid to have the DEP permit revoked for Consol’s Bailey Mine East Expansion project.
“The permit was issued despite the fact that the application filed by Consol predicts significant damage, notably subsidence and flow loss, to these streams,” CCJ officials posted online. “Since Consol’s destruction of Duke Lake via mining activity nearly ten years ago conservationists argue these two streams are some of the most important remaining water features and fishing spots in the park.”
EHB has set aside up to four days for a hearing on that appeal, beginning at 9:30 a.m. Jan. 10 in Pittsburgh. Meanwhile, mining continues.
“There are numerous environmental laws and regulations that we must live up to on a daily basis, and the permit at issue here is no exception,” CNXC CEO Jimmy Brock said in a statement issued Monday by Consol. “This has little to do with the environment and everything to do with an extreme philosophy that the people of Pennsylvania rejected at the ballot box in November. We will continue to vigorously defend the livelihoods of the 2000 employees at the Bailey complex.”
In their appeal CCJ and Sierra Club said DEP “erred in essentially three ways,” by not denying the permit revision; relying on CNXC’s “post-mining stream remediation plan to authorize longwall mining that is predicted to cause impairment of protected stream uses” which allegedly circumvents state waterway requirements; and acting out of accord “with its duties as a public trustee of the natural resources of the commonwealth.”
In a response on behalf of Consol and CNXC, attorney Robert L. Burns said the appellants “misstate the content and implications of testimony … regarding the longwall mining process” and advanced arguments for which “CPCC (Consol) did not have an opportunity to respond” in filings nor a conference call conducted Dec. 22 by EHB Judge Steven C. Beckman.
CCJ Executive Director Patrick Grenter again appealed to Gov. Tom Wolf to intervene.
“This area in Greene County is a state-designated environmental justice area and Ryerson is the only state park in Pennsylvania easily accessible to this community,” Grenter is quoted in his organization’s online post. “With the lake gone and now the near-certainty of damaging these streams, what recreational opportunities will this community have? We hope the Board will step up where the DEP and Gov. Wolf have failed and stop the destruction of this public property.”
The overall dispute over the Bailey Mine East Expansion project dates back to a May 1, 2014, permit revision allowing Consol to conduct full-extraction longwall mining on 3,175 acres and then perform post-mining stream restoration; and a Feb. 26, 2015, revision allowing full-extraction mining beneath Polen Run and above what are termed the 1L and 2L panels of the Bailey Lower East Expansion.
In a response filed with EHB on Nov. 21, Consol’s attorneys Burns, Howard J. Wein and Megan S. Haines of Buchanan Ingersoll & Rooney PC of Pittsburgh said the CCJ attorneys sought “an interpretation of the Clean Streams Law … which would effectively preempt the provisions of the Mine Subsistence Act (that) specifically allow planned subsidence.”
CCJ attorney Sarah E. Winner and co-counsel Ryan Hamilton of Fair Shake Environmental Legal Services in Pittsburgh denied that they sought what was termed “a zero-impact standard,” but did seek summary judgment, which Beckman rejected on June 6.
“It is not clear as a matter of law that the issuance of the permits was prohibited by the Clean Streams Law and/or the regulations,” Beckman wrote.
In a Dec. 6 filing on the original dispute, Winner and Hamilton argued that while DEP and Consol “try their best to obfuscate the obvious by focusing on irrelevant facts and legal straw man arguments,” their focus “is narrow and straightforward.”
They called DEP’s actions unconstitutional and called for remediation of any “subsidence-induced harm that has already occurred” and prevention of “any future predicted subsidence-induced use impairment in overlying streams.”