B&D Successfully Defends Important Permit for Consol Energy
Beveridge & Diamond successfully defeated an emergency challenge to a permit issued last month by the Pennsylvania Department of Environmental Protection (the “Department”) to our client Consol Pennsylvania Coal Company, LLC (“Consol”). On April 24, 2018, the Pennsylvania Environmental Hearing Board (the “Board”) denied a Petition for Supersedeas that sought to invalidate a permit authorizing Consol to conduct longwall mining operations beneath a stream in Ryerson Station State Park in southwestern Pennsylvania. (A copy of the opinion is available here.) In holding that the Appellants failed to meet their burden to prevent Consol from mining pursuant to the terms of its permit, the Board observed that “Consol has demonstrated that it has clearly committed substantial resources to develop effective preventive and mitigation techniques to ensure that the environment is protected.”
Appellants filed their appeal on March 21, 2018, alleging that the Department’s issuance of Consol’s permit violated Pennsylvania’s Clean Streams Law and Mine Subsidence Act, as well as Article I, section 27 of the Pennsylvania Constitution (also known as the Environmental Rights Amendment). The Board held a four-day supersedeas hearing on April 5-6 and April 16-17. Appellants and Consol presented expert witnesses in the areas of hydrology, stream ecology, and mining operations, among others. The Department presented expert witnesses in hydrology and stream restoration who had reviewed Consol’s permit application. While Appellants’ testimony focused on hydrogeologic and biological conditions and data submitted primarily in support of permit applications submitted several years ago, Consol’s witnesses discussed the actual data submitted in support of the current permit in late 2017 and early 2018, which reflected current conditions that differed materially from conditions at the time of those earlier submissions.
After hearing testimony and considering the parties’ post-hearing briefs, the Board found “no basis for concluding that the Department acted unreasonably or in violation of the relevant statutes and regulations or Article I, § 27 of the Pennsylvania Constitution when it issued [Consol’s] Permit. . . .” The Board further reaffirmed that neither the Clean Streams Law, the Mine Subsidence Act, nor the Environmental Rights Amendment requires that there be “no impact” to waters of the Commonwealth from activities permitted by the Department, including longwall mining.
This was an important ruling for Consol because the company faced the prospect of significant adverse financial impacts had the Appellants prevailed.