On April 24, 2018, the Pennsylvania Environmental Hearing Board issued a decision denying a Petition for Supersedeas filed by Center for Coalfield Justice and Sierra Club which had sought to enjoin Consol Pennsylvania Coal Company, LLC (“Consol”) from mining under a stream called Polen Run located in Ryerson Station State Park See Center for Coalfield Justice v. DEP, EHB Docket No. 2018-028-R (Opinion issued Apr. 24, 2018) (“CCJ III”). The Board’s opinion reinforces the Board’s prior decisions applying Article I, Section 27 of the Pennsylvania Constitution (“Environmental Rights Amendment” or “ERA”) in the context of a permitting decision in light of the Pennsylvania Supreme Court’s decision in Pa. Environmental Defense Found. v. Commonwealth, 161 A.3d 911 (Pa. 2017) (“PEDF”).

In a prior decision issued by the Board involving Consol’s longwall mining operations in the area known as the Bailey Mine East Expansion Area, as we reported here, the Board struck down one permit revision (No. 189), finding that it violated the Clean Streams Law (“CSL”) and the Bituminous Mine Subsidence and Land Conservation Act (“Mine Subsidence Act”), and therefore also violated the ERA, but upheld another permit revision (No. 180), finding that it did not violate the CSL or the Mine Subsidence Act and also did not violate the ERA. See Center for Coalfield Justice v. DEP, EHB Docket No. 2014-072-B (Adjudication issued Aug. 15, 2017) (“CCJ II”). Interestingly, Revision No. 189, which was struck down in CCJ II, had authorized longwall mining under Polen Run, the same permitted activity CCJ III approved, whereas Revision No. 180, which was upheld, did not. What changed was not the activity, but the evidence presented regarding environmental impacts.

In the Board’s more recent decision in CCJ III, the Board allowed Consol to proceed with longwall mining under Polen Run under a new permit revision (No. 210) after finding that the stream is not likely to be impaired and, should any flow loss occur, it can be successfully restored. Specifically, the Board found that, while it is possible that grouting could result in the impairment of a stream and therefore violate the ERA, the evidence presented before the Board indicated that grouting would only be required in small sections of the stream, if at all, that any such flow loss will be minimal and short-lived and restored with the restoration techniques authorized by the permit revision, and that the actual effects on the stream and Ryerson Station State Park will not be noticeable and will not interfere with the use of the park by the public.

Although the Board’s prior decision in CCJ II set forth the standards for complying with the ERA in the context of a permit action, that decision should now be read in tandem with CCJ III. While the primary rules and principles established in CCJ II remain intact, CCJ III adds a layer of factual analysis and legal interpretation over CCJ II and reinforces the importance of expert testimony in demonstrating compliance with the ERA.