PERMIT APPEALS FOR DECISION-MAKING POWER
Mountain Watershed Association V.
Department of environmental protection and LTc energy
PROBLEM:
A new coal mine was being proposed in Southwest PA and our client felt permits that significant impacts were being completely overlooked.
SOLUTION:
We used the permitting appeals process force the operators to take further safety measures and to guarantee the impacted community had decision-making power.
Background
In 2015, the Pennsylvania Department of Environmental Protection (DEP) issued permits to Rustic Ridge Mine No. 1. The Mountain Watershed Association (MWA) was opposed to the Rustic Ridge mine for its impacts on property values, traffic, air and water pollution, aesthetic beauty of our community etc. Our case though, rested on the effect the mine has on our watershed. In particular, we had two strong points in our case: 1) The barrier between an older mine and Rustic Ridge was insufficient and 2) The discharges into Champion Creek would overwhelm the stream.
Getting the case to court
The process of challenging an environmental permit involves all-out litigation - On appeal, the judge's role would have been to review the Department’s permitting decisions. To overturn a permitting decision, we were required to prove by a preponderance of the evidence that DEP either abused its discretion or acted contrary to law.
While overturning a permitting decision is never easy, we engaged numerous experts who would help us carry our burden and establish for the Board the devastating impacts the mine would have under the current permit. Our lawyers and mining expert worked to establish the greatest protections for not only our watershed but also our communities. The commitments that were secured go well beyond what could have been achieved before the Environmental Hearing Board.
Outcomes
Through settlement, MWA was able to secure commitments from LCT to amend the most egregious problems with its permits. Settling provided them with access to information our experts deemed important to monitor through the following measures:
Barriers: 800 foot barrier increased to 1400 foot horizontal barrier between the Melcroft No. 3 abandoned mine & the new Rustic Ridge No. 1 Mine; a piezometer will be placed in the barrier to detect water level changes that would indicate an illicit discharge to the Melcroft No. 3; and quarterly monitoring and more frequent monitoring the closer the mining comes to the barrier of that piezometer goes to MWA.
Temperature: relocation of the wastewater outfall to a downstream location just prior to the confluence with Champion Creek.
Flow: 1500 gpm flow from dewatering of the coal seam reduced to 1,000 gpm to ensure that streambed erosion does not occur.
Noise & blasting: eliminated fan shaft & return shaft through development of three slopes in the pit; location of variable frequency fan underground during slope development; peak particle velocity limited to 1.0 inch per second; air blast limited to 126 db; seismograph installed at home nearest to mine & readings from the seismograph go to MWA.
Lighting: dark sky & canopy lighting to be used.
Information: Discharge Monitoring Reports, pumping rates & six month mining map to be provided to MWA regularly.
Lessons learned
This settlement, which likely looks incredibly practical and reasonable, marks the first time in years that my client actually felt heard in the permit appeal process. On many occasions, we reached out to the governmental decision-makers to try to make the exact points that the settlement agreement ultimately rested upon.
The governmental attorney's response to our requests? Either that there's no need to meet or that my client has the ability to comment on the permit in the same way as everyone else. It is more than fair to criticize the PA governmental attorneys' apparent inability to do anything other than work to obstruct individuals and community organization's ability to be heard and valued.
It's not just the governmental attorney at fault. There's absolutely no reason that industries seeking permits cannot start the process of valuing the community in which they seek to operate long before a permit is even in draft form. If lawyers for those industrial users choose to push things through bureaucratic processes without valuing individuals and communities, then they should expect that hearings on the merits will focus on creating value by increased recordkeeping and data development as permit conditions, and by reducing environmental impact through more stringent pollution control requirements subject to citizen enforcement.
The way to engage in these otherwise lopsided hearing processes and ensure that you are meeting your client's objective of being valued in the environmental decision-making process is to see the attorney's role - for the industrial client, for the individual or community organization, and even for the government - as a true counselor, which involves much more than simply predicting the outcome of a legal argument. Lawyers as counselors can build value in all parts of the community and build community wealth.
