Appendix — UMCO Energy, Inc. v. Pennsylvania Department of Environmental Protection (No. 08-418)

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APPENDIX A

IN THE COMMONWEALTH

COURT OF PENNSYLVANIA

No. 724 C.D. 2007

[Filed December 12, 2007]

UMCO Energy, Inc.,

Petitioner

Department of Environmental

Protection,

Respondent

a a ee ee ee ee ee

Argued: October 10, 2007

BEFORE: HONORABLE BONNIE BRIGANCE

LEADBETTER, President Judge

HONORABLE JAMES GARDNER

COLINS, Judge

HONORABLE BERNARD UL.

McGINLEY, Judge

HONORABLE DORIS A. SMITH-

RIBNER, Judge

HONORABLE DAN PELLEGRINI, Judge

HONORABLE ROBERT SIMPSON,

Judge

HONORABLE MARY HANNAH

LEAVITT, Judge

OPINION

BY JUDGE LEAVITT

UMCO Energy, Inc. (UMCO) petitions for review of

an adjudication of the Environmental Hearing Board

(EHB) denying UMCO’s appeal from an order of the

Pennsylvania Department of Environmental

Protection (Department). The Department’s order

restricted UMCO to a technique known as “room-and-

pillar’mining in a section of one of its mines in

Washington County. In this case we consider whether

the Department’s authority under the Clean Streams

Law.’ to regulate activities that may impact the

Commonwealth’s waters is superseded by regulations

on mining operations contained in the Bituminous

Mine Subsidence and Land Conservation Act (Mine

Subsidence Act).2 We also consider whether the

Department’s order violated UMCO’s equal protection

rights. For the reasons that follow, we will affirm the

EHB.

' Act of June 22, 1937, P.L. 1987, as amended, 35 P.S. §§691.1 -

691.1001. The Department is the Commonwealth agency

responsible for administering and enforcing the Mine Subsidence

Act, the Clean Streams Law, Section 1917-A of the Administrative

Code, and the rules and regulations promulgated thereunder

* Act of April 27, 1966, P.L. 31, as amended, 52 P.S. §§1406.1 -

1406.21.

The facts in this case are not in dispute. UMCO is

a Pennsylvania corporation that operates an

underground bituminous coal mine known as the High

Quality Mine in Fallowfield Township, Washington

County. Initially, the Department permitted UMCO to

extract coal using the room-and-pillar method.*

Beginning in May 2002, the Department issued a

series of permit revisions allowing UMCO to use the

longwall mining method‘ provided that it did not

* The “room and pillar” method consists of a two-step process.

During the first step, as coal is removed from the mine,

blocks of coal known as pillars are left in place in a pre-

planned pattern to support the strata overlying the coal

seam being mined. Second, when the primary mining is

substantially completed in a particular area, the coal

pillars are systematically removed as the mining

operation retreats. Operators seek to remove as many coal

pillars as possible, consistent with safety.

Robert E. Beck, COLLOQUIM ON SMCRA: A TWENTY YEAR

REVIEW: Protecting The Public Interest or Surface Owners From

Their Own Folly?: A Close Look At “Preventing” Subsidence Under

the Surface Mining Control and Reclamation Act of 1977

(SMCRA), 21 S.IlLU.LJ. 391, 411 (1997\Xciting Keystone

Bituminous Coal Association v. Duncan, 771 F.2d 707, 710 (3d Cir.

1985)).

“ Longwall mining is conducted through the use of large machines

that extract virtually all the coal within a rectangular area known

as a panel without leaving pillars to support the mine roof. As the

mining machine moves through the panel, the mine roof collapses

behind the machine causing subsidence of the surface overlaying

the panel, and often results in loss or damage to natural water

resources. This Court has previously described longwall mining as

follows:

The longwall method is generally favored by the industry

infringe on the “no subsidence zones” that were

designated for several streams above the mine. Two of

these streams are at issue in the present action and

have been designated as the “4E/5E Stream” and the

“6E Stream.” The streams are so-named because of

their position relative to the underlying panels in High

Quality Mine; the 4E/5E Stream lies above the 4E and

5E panels and the 6E Stream lies above the 6E panel.

The 4E/5E Stream and the 6E Stream have the same

hydrogeology. Both are headwater streams that

receive natural flow from the surface runoff, springs,

seeps, and shallow groundwater. The 6E Stream is a

perennial stream that flows continuously throughout

the calendar year.

UMCO began longwall mining in the 4E and 5E

panels in 2004. As a result, the 4E/5E Stream lost

flow a..d eventually became dry.” UMCO attempted to

restore flow to the 4E/5E Stream by filling cracks and

because it results in an extremely high recovery rate ata

relatively low cost. It also requires fewer employees than

the room-and-pillar method and is considered to be

relatively safer.... Moreover, longwall mining is an

accepted method of under ground mining which was

contemplated by both federal and state mining

regulations.... However, the major drawback to longwall

method is that as practiced today, it causes subsidence of

the surface.

People United to Save Homes v. Department of Environmental

Protection, 789 A.2d 319, 323 (Pa. Cmwlth. 2001) (internal citation

omitted).

* In addition, all of the springs above the 3E, 4E, and 5E panels

stopped flowing after UMCO commenced long wall mining in the

4E and 5E panels.

adding public water through a fire hydrant. UMCO

twice attempted to discontinue the public water flow to

show that the natural flow had returned to the 4E/5E

Stream; however, the 4E/5E Stream never regained

natural flow. As a result, UMCO continues to add

public water to the 4E/5E Stream to maintain flow.®

UMCO sought an informal permit revision to lift

the no-subsidence zone over the 6E panel. The

Department requested UMCO to submit hydrological

studies to predict the effects of longwall mining on the

6E Stream. UMCO predicted that the longwall mining

of the 6E panel would have the same effect on the 6E

Stream that the mining of the 4E and 5E panels had

on the 4E/5E Stream, i.e.,a loss of flow. The study

concluded, however, that mining would not have any

long term adverse impacts on the 6E Stream. The

Department rejected the UMCO’s study and concluded

that longwall mining would cause permanent,

irreparable damage to the 6E Stream. As are result, on

November 12, 2004, the Department issued an order

modifying UMCO’s permit to preclude mining beneath

the 6E Stream. The Department permitted UMCO to

use other mining methods in the 6E panel and to use

longwali mining in other panels of the mine.

* UMCO pumped a total of 28,340,000 gallons of public water into

the 4E/5E Stream between May 20, 2004, and September 16,

2005.

UMCO filed an appeal with EHB on November 12,

2004,’ followed by an amended appeal on February 2,

2005. UMCO’s amended appeal was limited to the

following issues: (1) whether the Mine Subsidence Act

precluded the Department from using its authority

under the Clean Streams Law to revise UMCOQO’s

permit to mine the 6E panel; (2) whether the Clean

Streams Law and its regulations extended to small

perennial streams like the 6E Stream; and (3) whether

the Department’s order prohibiting longwall mining in

the 6E panel violated UMCO’s equal protection right

under the United States Constitution and

Pennsylvania Constitution.® The parties proceeded in

a hearing before the EHB.

7 UMCO also filed a supersedeas petition, which was denied.

UMCO subsequently filed a petition for review of the supersedeas

denial to this Court, which this Court rejected.

® Prior to the date set for the close of discovery, UMCO petitioned

the Pennsylvania Supreme Court to assume King’s Bench

jurisdiction over the matter. The Supreme Court rejected

UMCO’s petition. UMCO later publicly announced that it would

be closing the mine at issue. As a result, the Department filed a

motion to dismiss the appeal as moot. The EHB denied the

Department’s motion and a hearing was scheduled. After the

close of discovery and one week before the hearing date, UMCO

designated for the first time several experts it intended to call at

the hearing. In response, the Department filed a motion in limine,

which was denied by the EHB. Instead, the EHB issued an order

postponing the hearing to allow the Department to conduct

discovery with respect to the newly identified experts. UMCO

again filed a petition for review with this Court to review the

EHB’s order postponing the hearing, but it later withdrew that

petition.

At the hearing, the EHB heard expert testimony

from both sides. There was “no dispute among all of

the experts that longwall mining the 6E [pJanel would

have disrupted flow in the 6E Stream, springs, seeps,

and wetlands.” EHB Opinion, dated Sept. 5, 2006, at

44, Finding of Fact No. 284. Although UMCO’s experts

opined that the 6E Stream would eventually recover,

they were unwilling to predict when and, moreover,

“conced[ed] that it is possible that the 6E Stream will

never recover.” EHB Opinion, dated Sept. 5, 2006, at

45, Finding of Fact No. 287. Based on the adverse

effects of longwall mining on the 4E/5E Stream and

the lack of adequate ground between the 6E Stream

and the 6E panel, the Department’s experts testified

that the 6E Stream would be irreparably harmed by

the proposed longwall mining of the 6E panel. The

experts for intervenor, Citizens for Pennsylvania’s

Future (PennFuture), agreed with this opinion. The

EHB found that, unlike UMCO’s experts, the experts

for the Department and PennFuture had extensive

training and experience relative to the impact of

subsidence on surface waters. Therefore, the EHB

credited the testimony of the Department’s and

PennFuture’s experts and rejected as not credible the

opinions of UMCO’s experts.

The EHB issued its opinion on September 5, 2006.

The EHB found that the 6E Stream was a perennial

stream that would be permanently dewatered by

UMCO’s longwall mining of the 6E panel. The EHB

concluded that the Department had authority under

the Clean Streams Law to prohibit UMCO from

conducting longwall mining on the 6E panel because of

the danger of pollution to the waters of the

Commonwealth in the 6E Stream. The EHB left the

record open for UMCO to introduce evidence in

support of its claim that it had been denied equal

protection. On March 19, 2007, the EHB issued an

amended adjudication rejecting UMCO’s equal

protection claim. The EHB found that UMCO failed to

prove that surface developers and underground coal

mine operators were similarly situated. The EHB

further found that, even assuming a mine operator

was similar to a surface developer, UMCO failed to

prove it was treated disparately. The present appeal

followed.

Before this Court, UMCO raises the following

issues: (1) whether the EHB erred in concluding that

the Mine Subsidence Act does not prohibit the

Department from regulatimg mining activities under

the Clean Streams Law if those activities will impact

Commonwealth waters, (2) whether the EHB erred in

concluding that the Clean Streams Law and its

regulations protect all waters of the Commonwealth,

including small perennial streams; and (3) whether the

EHB erred in concluding that the Department’s order

limiting longwall mining did not violate UMCO’s equal

protection rights. We will address UMCO’s contentions

seriatim.”

* This Court’s standard of review of a decision from the EHB is

whether findings of fact were supported by substantial evidence

and whether constitutional violations or errors of law were

committed. City of Erie (Council) v. Department of Environmental

Protection, 844 A.2d 586, 589 n.4 (Pa. Cmwith. 2004)

The Department’s Revision of Mine Permits

Under Authority of Clean Streams Law

In its first issue, UMCO contends that the

Department must issue a mining permit where the

operator's proposed plan to prevent mine subsidence

adopts every technically and economically feasible

measure to prevent subsidence, in satisfaction of

Section 5(e) of the Mine Subsidence Act. UMCO argues

that the permit must be issued even where the

proposed plan will not prevent the destruction of a

perennial stream, in violation of the Clean Streams

Law.’® Stated otherwise, UMCO argues that Section

authority to issue orders to prevent the pollution of waters of the

Commonwealth, which are defined very broadly to include “any

and all rivers, streams .. . or parts thereof.” 35 P.S. § 691.1.

Section 610 of the Clean Streams Law provides:

The department may issue such orders as are necessary

to aid in the enforcement of this act. Such orders shall

include, but shall not be limited to, orders modifying,

suspending, or revoking permits .. .. Such an order may

be issued if the department finds that a condition existing

in or on the operation involved in causing or in creating a

danger of pollution of the waters of the Commonwealth

35 P.S. § 691.610. See also 35 P.S. § 691.611 (unlawful to commit

water pollution); 36 P.S. §691.5(the Department has authority to

issue orders.); 25 Pa. Code § 86.37 (there must be no presumptive

evidence of pollution to waters of the Commonwealth); 25 Pa.

Code § 89.36 (the mine operator must ensure protection of the

hydrologic balance and prevent adverse hydrologic consequences);

25 Pa. Code § 89.65(a) (the mine operator must protect

environmental values); 25 Pa. Code § 89.142a(mine operator must

protect values and uses of streams). In this case UMCO does

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5(e) of the Mine Subsidence Act supersedes any other

statute that might apply to mine subsidence, including

the Clean Streams Law.

We begin by a review of Section 5(e) of the Mine

Subsidence Act, on which UMCO bases its argument

that the Clean Streams Law has no relevance to the

issuance of a mine subsidences permit. Section 5(e)

states:

An operator of a coal mine subject to the

provisions of this act shall adopt measures and

shall describe to the department in his permit

application measures that he will adopt to

prevent subsidence causing material damage to

the extent technologically and economically

feasible, to maximize mine stability, and to

maintain the value and reasonable foreseeable

use of such surface land: Provided, however,

That nothing in this subsection shall be

construed to prohibit planned subsidence in a

predictable and controlled manner or the

standard method of room and pillar mining.

52 P.S. §1406.5(e) (emphasis added). UMCO reads this

provision to mean that a mining operator is required

to “prevent subsidence” but only “to the extent

technologically and economically feasible.” Jd. A

mining operation that adopts such a plan, UMCO

challenge the Department’s authority under the Clean Streams

Law, but rather, whether said authority is preempted by Section

5 of the Mine Substance Act.

lla

argues, is exempt from the standards in the Clean

Streams Law.

As in any statutory construction” issue, the goal is

to “ascertain and effectuate the intention of the

General Assembly.” 1 Pa. C.S. § 1921(a). Generally, a

statute’s plain language provides the best indication of

legislative intent. See Commonwealth v. McClintic, 589

Pa. 465, 472, 909 A.2d 1241, 1245 (2006). A statute

shall be construed to give effect to all its provisions so

that no provision is mere surplusage. 1 Pa. C.S.

§ 1921(a). Additionally, although we must “listen

attentively to what a statute says|;) one must also

listen attentively to what it does not say.” Kmonk-

Sullivan v. State Farm Mutual Automobile Insurance

Co., 567 Pa. 514,525, 788 A.2d 955, 962 (2001).

Applying these principles here, we conclude that

UMCO’s construction of Section 5(e) must be rejected.

It does not comply with the plain language of the Mine

Subsidence Act and does not give full effect to the

entire statute. UMCO’s theory that its subsidence plan

is exempt from the Clean Streams Law lacks merit.

First, Section 5(e) does not state that other statutes

or regulations have no application to a mine operator’s

activities. Section 5(e) states simply that nothing in

“this subsection” -- t.e., Subsection (e) of Section 5 of

the Mine Subsidence Act — shall be construed to

prohibit planned and controlled subsidence. For

'' Where the question is one of statutory construction, this Court’s

review is plenary as it poses a pure issue of law. Snizaski v.

Workers’ Compensation Appeal Board (Rox Coal Co.), 586 Pa. 146,

891, A.2d 1267, 1272 (2006).

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example, Section 5(e) requires mine operators to use

what is “technologically and economically feasible” to

prevent subsidence. As clarified in the “provided,

however” clause of Section 5(e), the existence of this

requirement should not be construed to mean that a

mine operator's plan must prevent any and all

subsidence.

Second, UMCO’s exemption theory is directly

contradicted by Section 9.1 of the Mine Subsidence

Act, 52 P.S. § 1406.9a, which specifically preserves the

statutory protections for the waters of the

Commonwealth. Section 9.1(d) states as follows:

Nothing in this act shall be construed to amend,

modify or otherwise supersede standards related

to prevailing hydrologic balance contained in

the Surface Mining Control and Reclamation

Act of 1977 (Public Law 95-87, 30 U.S.C. § 1201

et seq.) And regulations promulgated by the

Environmental Quality Board for the purpose of

obtaining or maintaining primary jurisdiction

over the enforcement and administration of that

act nor any standard contained in the act of

June 22, 1937 (P.L. 1987, No. 394), known as ‘

“The Clean Streams Law,” or any regulation

promulgated thereunder by the Environmental

Quality Board.

52 P.S. § 1406.9a(d) (emphasis added). Section 9.1(d)

applies to the entire Mine Subsidence Act. Therefore,

it expressly provides that nothing in the Mine

Subsidence Act, including Section 5(e), shall be

construed to amend, modify or otherwise supersede the

Clean Streams Law or its regulations.

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Third, UMCO’s theory is inconsistent with this

Court’s decision in People United to Save Homes

(PUSH) v. Department of Environmental Protection,

789 A.2d 319 (Pa. Cmwlith. 2001). In PUSH, the

petitioner, a citizen group, challenged the

Department’s approval of a permit revision to allow

longwall mining. The petitioner contended that the

mining operator’s application did not comply with

Section 5(e) of the Mine Subsidence Act even though

the operator had adopted measures to prevent

subsidence “to the extent technologically and

economically feasible.” The petitioner argued that

Section 5(c) should be interpreted to mean that mining

should not be allowed unless the operator was able to

prevent any damage to homes caused by subsidence.

The EHB held, however, that Section 5(c) permitted

“longwall mining unless the homes undermined would

be irreparably harmed.” Id. at 328 (emphasis added).

This Court affirmed the EHB, explaining that,

under Sections 5(e) and 9.1(d),

[cloal mining companies were required to adopt

measures that would prevent material damage

to surface structures to the extent

technologically and economically feasible, and if

mining were to result in irreparable damage,

the Department could prohibit such mining.

Id. at 325. Notably, this Court also affirmed the EHB’s

holding that the permitted mining operations would

not cause pollution to the waters of the

Commonwealth, as the term is defined in Clean

Streams Law. Id. at 329.

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In sum, we reject UMCO’s broad reading of Section

5(e) of the Mine Subsidence Act, which establishes that

mining operators do not have to prevent any

subsidence so long as they pursue technologically

feasible measures to prevent subsidence. On the other

hand, Section 5(e) does not establish that all

subsidence, even that which would result in a violation

of the Clean Streams Law, may occur so long as the

mine operator adopts technologically feasible measures

to prevent that subsidence. Most importantly, Section

9.1(d) makes it clear that Section 5(e) cannot be read

to supersede the Clean Streams Law.

The EHB found that the 6E Stream was a

perennial stream that would be permanently

dewatered by UMCO’s longwall mining of the 6E

panel, in violation of the Clean Streams Law. We agree

and hold that the Department had authority under the

Clean Streams Law to prohibit UMCO’s longwall

mining of the 6E panel, even though UMCO adopted

measures to maintain the 6E Stream to the extent

technologically and economically feasible.

The Clean Streams Law and

Small Perennial Streams

UMCO next argues that the EHB erred in its

application of regulation at 25 Pa. Code § 89.142a(h),

which sets forth subsidence and control performance

standards. The EHB interpreted this regulation to

mean that the Department has legal authority to

protect the values and uses of perennial streams

regardless of size. UMCO argues that the regulation

applies only to “large,” continuously flowing perennial

streams, not to a stream so small that it has no name,

15a

such as the “6E Stream.”” In support, UMCO directs

the Court to the preamble to the regulation, which

states that the regulation applies to “larger streams.””*

UMCO asserts that the preamble must be

considered in construing the regulation because there

exists an ambiguity as to what types of perennial

streams qualify for protection -- i.e, only large

perennial streams or all perennial streams regardless

'2 UMCO additionally asserts that the 6E Stream does not flow

continuously throughout the year. However, the EHB found, as

fact, that the 6E Stream “flows continuously throughout the year,

year in and year out.” EHB Opinion, dated Sept. 5, 2006, at 54; see

also EHB Opinion, dated Sept. 5, 2006, at 27, Finding of Fact No.

158. UMCO has not challenged the EHB’s findings of fact as

unsupported by substantial evidence of record. Accordingly, the

parties and this Court are bound by the unchallenged facts as

found by the EHB.

'S The discussion and comments to the preamble state:

The [Pa. Environmental Quality Board] believe that the

current regulation in combination with the Department’s

technical guidance on perennial stream protection .. .

provides sufficient protection for perennial streams

located above and adjacent to the underground mines.

Since implementing the guidance in January 1994, the

Department has not encountered any situation when

perennial streams have been adversely affected by

diminution due to underground mining. The Board notes

that the subsection applies only to larger streams which

flow continuously throughout the calendar year, and that

there are interests who believe that its application should

be expanded to include smaller streams.

28 Pa.Bull. 2761 (June 13, 1998( emphasis added). Based on the

foregoing, UMCO argues that the 6E Stream is not entitled to

regulatory protection because it is a “smaller” stream.

16a

of size. It is true that preambles may be used to resolve

an ambiguity in a statute.’* However, preambles may

not be used to create ambiguity where none exists, and

in any case where a preamble is used as a tool to

resolve an ambiguous law, the preamble is not

controlling. English v. Commonwealth, 816 A.2d 382,

387(Pa. Cmwlth. 2003). Before we look to the preamble

for aid in construing the regulation, we must first find

that the regulation creates an ambiguity.

We turn then to the language of the regulation in

question. Section89.142a(h) addresses the protection

of perennial streams by subsidence control and states

as follows:

(h) Perennial streams.

(1) Underground mining operations shall be

planned and conducted in a manner which

maintains the value and _ reasonably

foreseeable uses of perenniat streams, such as

aquatic life; water supply; and recreation, as

* Section 1924 of the Statutory Construction Act of 1972 provides

as follows:

The title and preamble of a statute may be considered in

the construction thereof. Provisos shall be construed to

limit rather than to extend the operation of the clauses to

which they refer. Exceptions expressed in a statute shall

be construed to exclude all others. The headings prefixed

to titles, parts, articles, chapters, sections and other

divisions of a statute shall not be considered to control but

maybe used to aid in the construction thereof.

1 Pa. C.S. §1924.

17a

they existed prior to coal extraction beneath

streams.

(2) If the Department finds that the

underground mining operations have

adversely affected a perennial stream, the

operator shall mitigate the adverse effects to

the extent technologically and economically

feasible, and, if necessary, file revised plans

or other data to demonstrate that future

underground mining operations will meet

the requirements of paragraph (1).

25 Pa. Code §89.142a(h). The regulation states, quite

simply, that underground mine operators must

conduct their activities in a manner that will maintain

the values and reasonably foreseeable uses of

“perennial streams.” The regulation does not

distinguish between large and small perennial

streams; it applies to all perennial streams regardless

of size.

Nevertheless, UMCO sees &n ambiguity because

the regulation contains two definitions of perennial

streams. One definition relates to subsidence control,

and the other relates to erosion and sediment control.’®

*® The definition of perennial streams found in the erosion and

sediment control regulations states:

Perennial stream -- A body of water flowing in a channel

or bed composed primarily of substrates associated with

flowing waters and is capable, in the absence of pollution

or other manmade stream disturbances, of supporting a

benthic macroinvertebrate community which is composed

18a

Neither definition, however, distinguishes between

large and small streams. Most significantly, there is no

ambiguity because there is only one definition

applicable to subsidence control, i.e., the subchapter

including 25 Pa. Code § 89.142a. This definition states,

in relevant part, as follows:

For the purposes of this subchapter, perennial

stream is a strean or part of a stream that flows

continuously throughout the calendar year as a

result of groundwater discharge or surface

runoff. Th term does not include intermittent

or ephemeral streams.

25 Pa. Code 89.141(b)(2) (emphasis added). Because

there is no ambiguity in the regulation about whether

a perennial stream must be large or smal! before the

mine subsidence control regulation is triggered, there

is no reason to consult the preamble of the regulation.

UMCO concedes that the 6E Stream is a perennial

stream, and it does not challenge this factual finding

of two or more recognizable taxonomic groups of

organisms which are large enough to be seen by the

unaided eye and can be retained by a United States

Standard No. 30 sieve(28 meshs per inch, 0.595

millimeter openings) and live at least part of their life

cycles within or upon available substrates in a body of

water or water transport system.

25 Pa. Code §89.5.13(2)

19a

of the EHB.”© Whether the 6E Stream is a large or

small perennial stream is irrelevant. UMCO’s

contrary position finds no support in the Clean

Streams Law, which does not categorize between large

and small streams; rather, it defines the waters of the

Commonwealth to include “any and all. . . streams.”

35 P.S. § 691.1. The definition of pollution pertains to

“any waters” and without limitation to type of harm.

Id.

In sum, there is no ambiguity in the mine

subsidence control regulation. The EHB correctly

interpreted the plain language of 25 Pa. Code

§ 89.142(h) to mean that the Department has

authority to regulate a mining activity in order to

protect the “values and reasonably foreseeable uses of

perennial streams” regardless of their size.

Accordingly, we will affirm the EHB in this regard.

‘© The Board explained as follows:

The 6 E Stream is perennial. It is perennial under every

conceivable regulatory definition. Thus, this appeal does

not implicate the Department’s authority to regulate the

adverse effects of subsidence or intermittent or ephemeral

streams. The 6E Stream flows continuously throughout

the year, year in and year out. Biological evidence

supports that finding, but there is plenty of other

evidence, including eyewitness testimony, to support the

characterization of the stream as perennial even without

the biological evidence

EHB Opinion, dated Sept. 5, 2006, at 53-54.

20a

UMCO?’s Equal Protection Rights

Under the Constitutions of United

States and Pennsylvania

Finally, UMCO argues that the prohibition of its

proposed longwall mining of the 6E panel violated its

right to equal protection under the law as guaranteed

by the United States and Pennsylvania

Constitutions.’ UMCO asserts that in its enforcement

of the Clean Streams Law, the Department

“intentionally and systematically creates arbitrary

classifications.” UMCO Brief at 40. Specifically,

UMCO contends that the Department treated it

differently from surface developers under the Clean

Streams Law by disallowing mining that would result

in the permanent dewatering of a stream, while at the

same time allowing surface land developers to fill or

culvert streams.

UMCO?’s burden is a heavy one. It must show that

the Department’s disparate treatment “clearly,

palpably and plainly” violates its constitutional right

to equal protection under the law. Commonwealth v.

Sutley, 474 Pa. 256, 260-61, 378 A.2d 780, 782 (1977).

The essentials of equal protection under the United

States and Pennsylvania Constitutions have been

explained by our Supreme Court as follows:

'? Our Supreme Court treats equal protection claims under the

Fourteenth Amendment to the United States Constitution the

same as equal protection claims brought under Article I, Section

26 and Article III, Section 32 of the Pennsylvania Constitution.

Commonwealth v. Albert, 563 Pa. 133,138, 758 A.2d 1149, 1151

(2000) (quotation omitted)

2la

The essence of the constitutional principle of

equal protection under the law is that like

persons in like circumstances will be treated

similarly. However, it does not require that all

persons under all circumstances enjoy identical

protection under the law.

The right to equal protection under the law does

not absolutely prohibit the Commonwealth from

classifying individuals for the purpose of

receiving different treatment, and does not

require equal treatment of people having

different needs. The prohibition against treating

people differently under the law does not

preclude the Commonwealth from resorting to

legislative classifications, provided that those

classifications are reasonable rather than

arbitrary and bear a reasonable relationship to

the object of the legislation. In other words, a

classification must rest upon some ground of

difference which justifies the classification and

have a fair and substantial relationship to the

object of the legislation.

Curtis v. Kline, 542 Pa. 249, 254-255, 666 A.2d 265,

267-268 (1995) (emphasis added)."® Here, there is no

'® Legislative classifications are: (1) classifications which implicate

a “suspect” class or a fundamental right; (2) classifications

implicating an “important” though not fundamental right or

a“sensitive” classification; and (3) classifications which involve

none of these. Probst v. Departmentof Transportation, Bureau of

Driver Licensing, 578 Pa. 42, 56, 849 A.2d 1135, 1143-1144

(2004). The degree of scrutiny is determined by the type of interest

affected by the statutory classification, and classifications relating

22a

claim that the Clean Streams Law has established

classifications. Indeed, the statute protects streams

without regard to the identity of the person or activity

that violates its terms. Stated otherwise, the Clean

Streams Law does not treat surface developers

differently from underground mine operators.

This case is one of alleged discriminatory

enforcement. In order to establish discriminatory

enforcement, the party claiming such discrimination

must prove that the system of enforcement had a

“discriminatory effect” and was “motivated by a

discriminatory purpose.” Correll v. Department of

Transportation, Bureau of Driver Licensing, 726 A.2d

427, 431 (Pa. Cmwlth. 1999) (citing Wayte v. United

States, 470 U.S. 598, 609 (1985)). This is particularly

difficult to prove. Indeed, this Court long ago observed

that the “concept of equal protection does not require

that [the administrative agency] attack a problem all

at once or not at all.” Life Insurance Company of North

America v. Insurance Department, 402 A.2d 297,299

to the right to engage in a lawful occupation are to be analyzed

under the rational basis test. Plowman v. Department of

Transportation, Bureau of Driver Licensing, 535 Pa.314, 319, 635

~A.2d 124, 126 (1993). As explained by our Supreme Court, the

rational basis test requires a two-step analysis:

First, we determine whether the challenged statute seeks

to promote any legitimate state interest or public value;

and if so, we then determine whether the legislative

classification is reasonably related to accomplishing that

articulated state interest.

Kramer v. Workers’ Compensation Appeal Board (Rite Aid Corp.),

584 Pa. 309, 335, 883 A.2d 518, 534 (2005).

23a

(Pa. Cmwlth. 1979). Stated otherwise, the Department

does not have to respond to every violation of statute

in an identical fashion to avoid an equal protection

challenge.

Here, UMCO asserts that it was discriminatory for

the Department to allow surface developers to divert

and culvert streams. First, these permits were not

issued under the Clean Streams Law, but under the

Dam Safety and Encroachments Act.’ UMCO’s equal

protection argument, however, is based upon the Clean

Streams Law. Second, UMCO has not requested to

culvert or divert the 6E Stream under the Dam Safety

and Encroachments Act, or under any statute. Third,

although the Department has issued permits for

converting or relocating streams, and/or filling

wetlands, the evidence was uncontroverted that it has

never issued such a permit for a project that would

destroy a perennial stream. Here, the EHB found that

UMCO’s longwall mining of the 6E panel would result

in the permanent elimination of the 6E Stream.

In short, UMCO failed to establish that the

Department has enforced the Clean Streams Law in a

way to discriminate against UMCO. The Department

permitted UMCO to longwall mine under the 4E/5E

Stream on three occasions. It was only after UMCO

caused the 4E/5E Stream to become dewatered that

the Department took action to prevent a similar loss of

flow in the 6E stream, while at the same time allowing

UMCO to continue to longwall mine other mine panels

'? Act of November 26, 1978, P.L. 1375, as amended, 32 PS.

§§693.1-693.27.

24a

and to room-and-pillar mine the 6E panel. UMCO has

presented no evidence to support its position that the

Department’s permitting decisions have been driven

by malicious intent. See Village of Willowbrock uv.

Olech, 528 U.S. 562, 564 (2000) (a party complaining

of an equal protection violation must prove that it has

been intentionally treated differently from others

similarly situated).”°

UMCO has failed to prove factually that the

Department enforced any statute, including either the

Clean Streams Law or the Mine Subsidence Act, in a

manner that discriminates against UMCO.

Accordingly, we hold that UMCO’s right to equal

protection under the law was not offended by the

Department’s revision to UMCO’s mining permit.

Conclusion

In sum, we reject UMCO’s claim that its mine

subsidence permit could not be revised by the

Department under authority of the Clean Streams

Law. We reject UMCO’s claim that the 6E Stream was

too small of a perennial stream to be governed by the

Department’s regulation at 25 Pa. Code §89.142a(h).

Finally, we reject UMCO’s claim that it has been

denied equal protection under the law.

*° Because UMCO has not requested a permit to culvert a stream,

it is not similarly situated to persons that requested and received

a permit.

25a

For all these reasons, we affirm the EHB.

/s/

MARY HANNAH LEAVITT, Judge

26a

IN THE COMMONWEALTH COURT OF

PENNSYLVANIA

No. 724 C.D. 2007

[Filed December 12, 2007]

UMCO Energy, Inc.,

Petitioner

Department of Environmental

Protection,

Respondent

ORDER

AND NOW, this 12th day of December, 2007, the

order of the Environmental Hearing Board dated

March 19, 2007, in the above captioned matter is

hereby AFFIRMED.

/s/

MARY HANNAH LEAVITT, Judge

[Certified from the Record,

December 12, 2007,

and Order Exit]

27a

APPENDIX B

COMMONWEALTH OF PENNSYLVANIA

ENVIRONMENTAL HEARING BOARD

EHB Docket No. 2004-245-L

[Issued: March 19, 2007]

UMCO ENERGY, INC.

COMMONWEALTH OF PENNSYLVANIA,

DEPARTMENT OF ENVIRONMENTAL

PROTECTION and CITIZENS FOR

PENNSYLVANIA'S FUTURE, Intervenor

ee ee a ee a ee ee

AMENDED ADJUDICATION

By Bernard A. Labuskes, Jr., Judge

Synopsis:

After considering previously excluded evidence

proffered by an underground coal mine operator, the

Board finds that the operator was nut deprived of the

equa! protection of the laws vis-a-vis shopping malls

and highway builders. Among other things, the

operator failed to demonstrate that underground coal

28a

miners and developers of surface projects are similarly

situated.

Background

We issued our Adjudication in this appeal on

September 5, 2006. We rejected all but one of UMCO

Energy, Inc.’s (“UMCO’s) challenges to the

Department of Environmental Protection’s (the

“Department’s”) Order restricting UMCO to room-and-

pillar mining under the 6E Stream at one panel of its

High Quality Mine in Fallowfield Township,

Washington County. At the original hearing on the

merits, UMCO proffered evidence in support of its

claim that it had been deprived of the equal protection

of the law vis-a-vis shopping malls and highway

projects. Judge Labuskes granted the Department’s

and Citizens for Pennsylvania’s Future’s

(“PennFuture’s”) objections and excluded _ that

evidence, ruling as a matter of law that shopping

malls, highway projects, and underground coal mines

are not similarly situated. Upon review of the parties’

post-hearing briefs, we decided that UMCO should be

allowed to put the evidence on the record. We

explained that ruling as follows:

UMCO argues that Judge Labuskes erred by

excluding evidence showing that UMCO has

been improperly discriminated against vis-a-vis

surface developers whose activities “were

known to destroy streams.” UMCO has

contended that the Department treats large

retail developments and highway construction

projects quite differently than underground coal

mines when it comes to regulating impacts on

29a

streams. We ruled at the hearing that shopping

malls and underground coal mines are not

similarly situated parties as a matter of law and

we excluded the evidence. UMCO madea proper

offer of proof and has otherwise properly

preserved the issue. Upon reflection, we have

decided to allow UMCO to present the evidence

that was offered at the hearing to support its

claim. We have scheduled a hearing in the near

future for that purpose. We will address this

aspect of UMCO’s equal protection argument

following that hearing. We express no opinion

here regarding the merits of the claim. There is

no overlap between the elements of this claim

and UMCO’s other objections to the

Department’s Order, so there was no reason to

delay issuance of this Adjudication.

UMCO v. DEP, slip op. at 94-95.’

' We went on to reject UMCO’s claim that it had been

discriminated against vis-a-vis other underground mines. After

noting that UMCO waived the objection in its post-hearing brief,

we held that UMCO would not in any event have prevailed on the

claim:

We will note for the record that there was no evidence in

UMCO’s case of any fact pattern where the Department

allowed a deep mine operator to mine under a perennial

stream knowing in advance that the stream would be

permanently dewatered, the only possible exception being

UMCO’s mining of Panel 5E. The equal protection clause

generally prohibits differences in treatment of similarly

situated parties based upon a constitutionally suspect

standard (not applicable here) or other classification

lacking in rational justification. F.R.&S. Inc. v. DEP, 1998

EHB 947, 949. There are no similarly situated persons

30a

We held a hearing on UMCO’s remaining equal

protection claim on September 26, 2006. The last post-

hearing brief--UMCO’s reply brief--was filed on March

5, 2007. Accordingly, we are now in a position to rule

on UMCO’s final objection on its merits. The text of

our September 5, 2006 Adjudication is incorporated

herein by reference. For ease of citation, we will begin

numbering the Findings of Fact and the Conclusions of

Law at the points where they ended in the original

Adjudication.

FINDINGS OF FACT

329. The Department issues Chapter 105 permits

to surface developers whose projects will encroach into

the waters of the Commonwealth after a review of an

application that includes, inter alia, an alternatives

evident here. If there is any party who has been given an

unfair advantage vis-a-vis other members of the regulated

community, itis UMCO. UMCO was permitted to mine at

the shallowest cover longwall mine in the state on a

expedited schedule pursuant to “informal permit

revisions” issued without public notice of any kind on the

basis of poorly developed baseline data. Other operators

have been required to submit extensive premining data.

(T. 1549.) The Department’s witnesses testified

convincingly that the Department has not and will not

permit any mine where, as here, it is known that a stream

will be permanently taken. (T. 970, 983.) UMCO has

failed to make a case that the Department has treated

similarly situated coal companies dissimilarly and its

equal protection claim visa-vis other deep mine operators

must fail.

Id., slip op. at 95-96.

3la

analysis and a comparison of the harms and benefits

of the project. (T. 1889-92.)

330. The Department has issued Chapter 105

permits for projects that have resulted in culverting

streams, relocating streams, and/or filling wetlands.

(T. 1847-50, 1868-83.)

331. The Department has never issued a Chapter

105 permit for a project that authorized the permanent

elimination of an entire perennial stream and all of the

springs, seeps, wetlands, and groundwater hydrology

associated with that stream. (T. 1990.) The Chapter

105 permits relied upon by UMCO in support of its

claim did not authorize such an event. (FOF 331.).

332. The Department issued UMCO a Chapter 105

permit to eliminate wetlands in order to install a mine

shaft on its property in exchange for a monetary

contribution to the National Fish and Wildlife

Foundation. (N.T. 1902-03.)

333. UMCO received a Chapter 105 permit to

perform remedial work in a stream that resulted from

unanticipated subsidence damage. (N.T. 1906, 1910-

13.)

334. The Department did not treat UMCO

differently than any other similarly situated party.

335. There is no record evidence that the

Department purposely discriminated against UMCO,

acted in bad faith, acted maliciously or invidiously, or

created arbitrary or irrational classifications.

32a

DISCUSSION

All persons are entitled to equal protection of the

laws. U.S. CONST. Am. 14; PA. CONST., art. I, Section

26. The equal protection clauses of the United States

and Pennsylvania Constitutions direct that “all

persons similarly situated should be treated alike.”

Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432,

439 (1985); Commonwealth v. Albert, 758 A.2d 1149,

1151 (Pa. 2000); Curtis v. Kline, 666 A.2d 265, 267 (Pa.

1995).

There are two types of claims available under the

equal protection clause. The first claim is available

when a statute or regulation on its face creates an

impermissible classification. See Probst v. Department

of Transportation, 849 A.2d 1135, 1142 (Pa. 2004).

Here, UMCO has not alleged that a statute or

regulation creates an impermissible classification. The

second type of claim is available when a statute or

regulation, neutral on its face, is enforced in a

discriminatory manner. Barsky v. Department of

Public Welfare, 464 A.2d 590, 594 (Pa. Cmwlth. 1983),

affd, 475 A.2d 742 (Pa. 1984). The government

deprives a person of his or her constitutional right to

equal protection of the laws if it applies and

administers a facially neutral law, “with an evil eye

and an unequal hand, so as to make unjust and illegal

discrimination between persons in_ similar

circumstances, material to their rights.” Yick Wo v.

Hopkins, 6 S.Ct. 1064 (1886). Discriminatory

enforcement is constitutionally prohibited if it is

shown that similarly situated parties receive disparate

treatment, the discrimination is purposeful and

intentional, and the government’s action is based upon

33a

impermissible considerations such as race or religion

or an arbitrary classification. Commonwealth v. Parker

White Metal Co., 515 A.2d 1358, 1363 (Pa. 1986);

Commonwealth v. Lewis, 279 A.2d 26, 29 (Pa.), cert.

denied, 92 S.Ct. 571 (1971); Medussa Corporation v.

DER, 415 A.2d 105, 110 (Pa. Cmwlth. 1980); .R.&S.,

Inc. v. DEP, 1998 EHB 947, 949-51, affd, 761 A.2d 634

(Pa. Cmwlth. 2000). UMCO argues that the

Department has applied the Clean Streams Law, 35

P.S. § 691.1 et seg., which is neutral on its face, in a

discriminatory manner.

UMCO’s specific claim is that it has been

discriminated against vis-a-vis developers of shopping

malls and builders of highways “whose activities were

known to destroy streams.” UMCO first posits that

developers of shopping malls, highways, and

underground coal mines are similarly situated because

they all can affect the waters of the Commonwealth

and they are all subject to regulations promulgated

pursuant to Clean Streams Law. UMCO goes on to

claim that these allegedly similarly situated partics

have been treated dissimilarly because shopping mall

developers and highway builders can obtain permits

under 25 Pa. Code Chapter 105 to “destroy streams,”

but UMCO must comply with the rules and

regulations applicable to underground coal mines, and

those regulations as “misinterpreted” by the

Department do not allow UMCO to “destroy streams.”

UMCO’s claim must suffer the same fate as its claim

that it was discriminated against vis-a-vis other

mining companies. As correctly argued by the

Department and PennFuture, UMCO has failed to

establish any of the elements of a meritorious equal

protection claim.

34a

Preliminarily, as we explained in our Adjudication,

the Department has not “misinterpreted” the Clean

Streams Law or the underground coal mining

regulations promulgated thereunder. The

Department’s interpretations are eminently

reasonable and we have upheld them in all respects.

See Tire Jockey Service, Inc. v. DEP, No. 178 MAP

2004, 2007 Pa. Lexis 362 (Pa. February 20, 2007)

(Department’s interpretations to be upheld if Board

finds them to be reasonable).

More to the point, UMCO has not convinced us that

shopping malls, highway projects, and underground

coal mines are similarly situated parties. It is true that

all of those projects can adversely affect waters of the

Commonwealth, but it is there that any similarity

ends. The fact that all of the projects can affect water

is too tenuous of a connection, too limited of a

commonality, to make them “similarly situated” for

purposes of an equal protection analysis.

If having an effect on waters is enough to render

parties similar situated, why stop at shopping malls

and highway projects? There is a rather long list of

activities that are regulated pursuant to the Clean

Streams Law, including, for example, the following:

Submission of official sewage facilities plans. 25

Pa. Code § 71.21.

Noncoal exploration activities. 25 Pa. Code

§ 77.109.

Discharge requirements for oil and gas wells. 25

Pa. Code § 78.60.

Underground coal mining. 25 Pa. Code § 86.6.

Surface mining of coal. 25 Pa. Code § 87.102.

35a

Surface mining of anthracite coal. 25 Pa. Code

§ 88.92.

Underground mining of coal. 25 Pa. Code

§ 89.52.

Disposal of coal refuse. 25 Pa. Code § 90.102.

Underground disposal cf wastes. 25 Pa. Code

§ 91.52.

Concentrated anima! feeding operations. 25 Pa.

Code § 92.5a.

Municipal wasteload management. 25 Pa. Code

§ 94.1.

Erosion and sediment control permits and

plans. 25 Pa. Code §102.1.

Siting of underground and aboveground storage

tanks. 25 Pa. Code § 245.234.

Land recycling activities. 25 Pa. Code § 250.1.

Permitting for beneficial use of municipal

waste. 25 Pa. Code § 271.821.

Construction of waste landfills. 25 Pa. Code

§ 277.202.

Operation of waste transfer facilities. 25 Pa.

Code § 279.213.

Operation of composting facilities. 25 Pa. Code

§ 281.202.

Use of coal ash as a soil substitute or soil

additive. 25 Pa. Code § 287.662.

Storage and transportation of residual waste. 25

Pa. Code § 299.142.

UMCO uses shopping malls and highway projects as

examples, but if the class is defined as UMCO has

defined it to include all activities having an impact on

streams, and therefore, all activities that are regulated

under the Clean Streams Law, the class should include

landfills, sewage plants, industrial dischargers,

36a

construction projects, surface coal mines, quarries,

railroads, concentrated animal feeding operations,

gasoline stations, etc. In fact, the purported class

includes virtually every commercial or development

activity in which man can engage. UMCO has not

pointed to anything unique about underground mines,

shopping malls, and highways that separates them

from this broader class.

UMCO’s proposed definition of similarly situated

parties creates an inappropriate and unmanageable

construct. If the Department is required to defend its

action involving a deep mine by explaining its actions

regarding shopping malls, the next case may require

the Department to justify its action against a gasoline

station by explaining and comparing it to actions it has

taken against sewage plants, or concentrated animal

feeding operations. Such _ strained, far-flung

comparisons might form the basis of an interesting

philosophical discussion or hold some interest at a

visceral level, but they should not be the appropriate

subject of Board proceedings. These are not the sort of

comparisons envisioned by the equal protection clause,

and this is why UMCO’s evidence regarding shopping

mall projects was initially excluded in this proceeding.

Other underground coal mines are at least arguably

similarly situated; shopping malls and underground

coal mines are not.

UMCO has not explained how or why it would be

entitled to the same sort of permits that apply to

surface developers. In order to be entitled to a Chapter

105 permit, there must be an “encroachment.”

Pointedly, UMCO has carefully avoided an allegation

that its subsidence impacts on surface waters and

37a

shallow groundwater constitute an “encroachment.” It

has not so much as mentioned our holding in Consol

Pennsylvania Coal Co. v. DEP, 2002 EHB 792, wherein

another underground coal mine company strenuously

argued, and we agreed, that subsidence impacts do not

in and of themselves constitute an “encroachment.” If

the subsidence impacts of UMCO’s mining will not

cause an “encroachment,” as UMCO seems to concede,

but shopping malls and highway projects do result in

“encroachments,” it is difficult to understand how

these two groups can be considered to be similarly

situated parties.

Assuming for purposes of further discussion that

UMCO and surface developers are similarly situated,

UMCO has not shown that these two supposedly

similar groups have received disparate treatment.

UMCO’s claim of unfair disparate treatment is that

shopping mall developers are entitled to destroy or at

least impair streams and UMCO is not. It argues that

the Department has a “zero tolerance policy” when it

comes to its mining even though the “opposite” is true

when it comes to shopping malls and highway

developers. (Brief at 20.) UMCO is wrong in both

respects. Actually, the Department allowed UMCO to

continue mining multiple panels even after the first

panels were observed to cause more damage than

* The closest that UMCO comes to the subject is a concession in its

initial brief that “UMCO recognizes that underground mining is

not subject to an encroachment permit to dredge and fill.” (Brief

at 20.) This statement seems to directly contradict its claim that

it is entitled to pursue a Chapter 105 permit and is emblematic of

the rather imprecise formulation of its equal protection claim in

general.

38a

expected. (FOF 30, 36-37.) As a result of the

Department’s permitting decisions, UMCO’s mining

resulted in the systematic elimination of every spring,

seep, and stream above its mining. (FOF 38, 223.)°

Among other things, flow in the formerly perennial

4E/5E Stream has been lost. (FOF 38, 40-41.) It is not

clear whether any of these surface and shallow

groundwater features will ever be the restored. (FOF

40, 284, 298, 309, 316.) Eventually, when UMCO

proposed to longwall mine under a new stream, the 6E

Stream, the Department allowed it to mine, but only if

it used room-and-pillar mining. The Department did

not prohibit UMCO from mining under the 6E Stream.

Indeed, UMCO is entitled to mine under the 6E

Stream to this day. Still further, UMCO was given

permission to move forward with longwall mining in

other areas of the mine. (FOF 84.) The Department’s

Order only related to one method of mining in one of

UMCO’s eleven mining panels. To suggest that the

Department’s modest effort to protect what was left of

the watershed feeding the second-order tributary to

Maple Creek was a “zero tolerance policy” is inaccurate

and in no small amount ironic.*

*UMCO continues to attempt to limit eur foeus and our analysis

to the 6E Stream as if that is the only relevant factor. We reject

that approach with respect to the equal protection objection just

as we did when we examined technical aspects of this case.

UMCO0O’s approach has as much merit as the proverbial blind man

reaching a conclusion regarding the identity of the beast by feeling

nothing but the elephant’s tail.

* Along the same lines, UMCO’s contention that the Department

has “denied” it “the right to commercially develop its real property

interests” falls far from the mark.

39a

It is equally untrue to suggest that the Department

has applied “the opposite” of a zero tolerance policy to

surface developments. UMCO’s theory has no support

in the record because UMCO has failed to demonstrate

as a matter of fact that any surface developments have

been permitted to, in UMCO’s words, “destroy

streams.” UMCO pointed to two projects in the

Pittsburgh area, but neither project involved the

destruction of any streams. There was some vague

reference to a third project that apparently is currently

under review (T. 1885, 1887, 1896), but not enough to

credibly draw any conclusions and certainly not

enough to surmise that any streams are being

“destroyed.”

UMCO has not drawn our attention to any surface

development where the Department allowed the

developer to irreversibly dewater not only every

surface water feature but the entire shallow hydrologic

regime in the area of its project. (T. 1890.) UMCO

refers to the culverting of streams, but culverting is

not unlike the bentonite grouting that UMCO was

permitted to try on the 4E/5E Stream. Culverting

maintains flow; the bentonite grouting did not. UMCO

points to the relocation of streams at surface projects.

After relocation, however, there is still a stream;

UMCO’s mining would have eliminated, not moved,

the stream, springs, seeps, wetlands, and shallow

groundwater acquifers. There is simply no comparison

between UMCO’s examples of surface development

and what UMCO proposed to do and has done at its

High Quality Mine.

When the Department evaluates a surface project

that will encroach upon waters of the Commonwealth,

40a

it generally works with the developers to seek a

reasonable accommodation, which is not unlike its

determination that UMCO could longwall the vast

majority of its High Quality Mine but limit its mining

to the room-and-pillar method in one panel due to the

unprecedented shallow cover between the mining and

the shallow groundwater system.

Thus, it appears that the Department did not treat

UMCO all that differently than any surface

developers. If anything, UMCO may have been treated

better. It has not been required to restore or replace

lost habitat. It is being permitted to mine under the 6E

Stream using traditional methods, even though there

is less than 300 feet of cover. UMCO has been

permitted to move forward with longwall mining at

other parts of the site notwithstanding the presence of

numerous additional streams and other surface water

features.

In order to show that there has_ been

constitutionally infirm selective enforcement, it is not

enough to point out that similarly situated parties

have been treated dissimilarly. A State Trooper cannot

possibly ticket every driver exceeding the speed limit.

It is no defense that there are other speeders. The

equal protection clause only arguably comes into play

if the speeder in question was selected based upon

impermissible considerations. The administration of

the law must not only be “intentional or purposcful,”

the courts use such phrases as “invidious,” “malicious,”

“bad faith,” or “administered with an evil eye.” See,

e.g., Barsky v. Department of Public Welfare, 464 A.2d

590, 594 (Pa. Cmwlth. 1983). There is no evidence in

this case that UMCO was invidiously singled out.

4la

UMCO appears to concede as much when it suggests,

incorrectly, that no such improper basis or invidious

motive is necessary. (Brief at 25.) In any event, UMCO

certainly does not draw our attention to anything in

the record to support a finding of invidious action or

intentional and purposeful discrimination.

With regard to UMCO’s specific contention that

underground mines are not entitled to Chapter 105

permits, but shopping mall developers are, UMCO is

simply wrong. To the extent an underground mine’s

surface activities result in an encroachment, it is

entitled to a Chapter 105 permit. In fact, somewhat

remarkably given UMCO’s theory, UMCO’s employee

admitted in response to questioning by UMCO’s

attorney that UMCO itself has received Chapter 105

permits at its mine. UMCO was permitted to

permanently eliminate wetlands on the site in order to

install a mine shaft in exchange for a monetary

contribution to the National Fish and Wildlife

Foundation. (T. 1902-03.) Still further, UMCO, like

other deep mine operators, received a Chapter 105

permit to perform actual remedial work in a stream

that resulted from unanticipated subsidence damage.

(T. 1906, 1910-13.) Thus, the facts directly contradict

UMCO’s claim that underground mines and surface

developments are treated differently when an

encroachment is involved.

There is also no evidence to support UMCO’s theory

that the Department has created a classification that

is based on suspect factors (race, religion, etc.) or an

irrational distinction. UMCO notes that surface

developers must obtain their permits to encroach upon

waters of the Commonwealth through the Chapter 105

42a

permitting process. In contrast, underground mines

must obtain their mining permits primarily through

the underground mine permitting process. As

previously mentioned, where an underground mine

does involve surface encroachments, the Chapter 105

permitting process does apply. Further, we believe it

would be irrational not to permit shopping malls and

underground coal mines under different regulatory

programs. Both the encroachment program and the

underground mining programs are fundamentally

designed to regulate the amount of pollution that will

be allowed. It is perfectly appropriate, not irrational,

to achieve that goal with regulations geared

specifically toward the many different activities that

can result in pollution.

The equal protection clause does not afford all

parties an equal opportunity to violate the law. The

Clean Streams Law does not envision the permanent

destruction of waters of the Commonwealth, at least

without replacement of the lost resources under tightly

controlled circumstances. Machipongo Land and Coal

Company, Inc. v. DEP, 799 A.2d 751 (Pa. 2002). Even

if UMCO had been able to show that the Department

was authorizing illegal activity by way of Chapter 105

permits, it would merely show that the Department

was violating the law with respect to those permits,

not that UMCO is somehow constitutionally entitled to

similar forbearance. Consistency would need to be

achieved by correcting the other side of the equation,

not authorizing more violations.

Along that same line, even if UMCO had a

meritorious claim, it has been rather vague regarding

what relief it contends would follow. We agree with the

43a

Department and PennFuture that it certainly does not

automatically follow that the Department’s Order

would need to be vacated. An opportunity to apply for

an encroachment permit does not make any sense

because UMCO has not identified any “encroachment”

that could be the subject of an encroachment permit.

It is incumbent upon parties to explain and justify

what relief they believe they are entitled to in the

event they prevail. See Schaffer v. DEP, EHB Docket

No. 2005-087-L (Adjudication, December 21, 2006).

UMCO has suggested possibilities but not explained or

justified any particular remedy in any detail. There is

no need to speculate further on what could have been

done had UMCO prevailed on its theory.

CONCLUSIONS OF LAW

20. The Department’s Order did not improperly

subject UMCO to treatment disparate from any other

similarly situated party or otherwise deprive UMCO of

equal protection of the laws.

44a

COMMONWEALTH OF PENNSYLVANIA

ENVIRONMENTAL HEARING BOARD

EHB Docket No. 2004-245-L

{[Issued: March 19, 2007]

UMCO ENERGY, INC.

COMMONWEALTH OF PENNSYLVANIA,

DEPARTMENT OF ENVIRONMENTAL

PROTECTION and CITIZENS FOR

ENNSYLVANIA’S FUTURE, Intervenor

ee ee a a a a

ORDER

AND NOW, this 19th day of March, 2007, it is

hereby ordered that our Order of September 5, 2006 is

revised to provide that UMCO’s appeal is dismissed in

its entirety. Jurisdiction is relinquished.

ENVIRONMENTAL HEARING BOARD

MICHAEL L. KRANCER

Chief Judge and Chairman

GEORGE J. MILLER

Judge

45a

THOMAS W. RENWAND

Judge

MICHELLE A. COLEMAN

Judge

BERNARD A. LABUSKES, JR.

Judge

DATED: March 19, 2007

46a

APPENDIX C

COMMONWEALTH OF PENNSYLVANIA

ENVIRONMENTAL HEARING BOARD

EHB Docket No. 2004-245-L

[Iissued: September 5, 2006]

UMCO ENERGY, INC.

COMMONWEALTH OF PENNSYLVANIA,

DEPARTMENT OF ENVIRONMENTAL

PROTECTION and CITIZENS FOR

PENNSYLVANIA’S FUTURE, Intervenor

ee i a ee ee ee

ADJUDICATION

By Bernard A. Labuskes, Jr., Judge

Synopsis:

In an appeal from a Department order restricting

an underground mine operator to room-and-pillar

mining in one of its eleven mining panels, the Board

holds that the Department has the legal authority to

prohibit longwall mini: ., in the panel where it is very

likely that longwall mining will completely and

permanently eliminate all flow in a perennial stream

47a

and the springs, seeps, and wetlands appurtenant to

that perennial stream. The operator’s commitment to

perform stream flow replacement with city water from

a hydrant does not prohibit the Department from

issuing an order protecting the stream from

permanent damage. The Board, however, reopens the

record to allow the operator to present previously

excluded evidence in support of its claim that it was

denied equal protection vis-a-vis shopping centers and

highway builders.

Procedural History

On November 12, 2004, the Department of

Environmental Protection (the “Department”) issued

an order restricting UMCO Energy, Inc. (““UMCO”) to

room-and-pillar mining in the 6East (6E) panel of its

High Quality Mine in Fallowfield Township,

Washington County (the “Order”). That same day,

UMCO filed an appeal from the Order with this Board.

On November 15, 2004, UMCO filed a petition for

temporary supersedeas and a petition for supersedeas.

The day after the petitions were filed, the Board held

a conference call with the parties. As a result of the

discussions, the Board scheduled a_ supersedeas

hearing to begin three days later, on November 19,

2004. In light of the Board’s immediate attention to

UMCO’'s petition for supersedeas, UMCO withdrew its

petition for temporary supersedeas. Prior to the

hearing, Citizens for Pennsylvania’s Future

(“PennFuture”) and the United Mine Workers of

America (“UMWA”) intervened. PennFuture

intervened on the side of the Department and UMWA

intervened on the side of UMCO.

48a

The supersedeas hearing began on November 19,

2004 and continued over the course of three days. The

Board conducted a site visit on Saturday, November

20, 2004. We denied UMCO’s petition for supersedeas

in an Opinion and Order dated November 30, 2004.

UMCO Energy, Inc. v. DEP, 2004 EHB 797. We found

that there would have been an immediate threat to the

environment had the supersedeas been issued, the

short-term harm being suffered by UMCO was

resulting in significant part from its own business

decisions and course of conduct, and UMCO had a very

low likelihood of prevailing on the merits because it

did not appear that UMCO would be able to establish

the factual predicate to its legal theories.

On December 2, 2004, UMCO filed a petition to

amend the Board’s Order to allow for an interlocutory

appeal to the Commonwealth Court. As before, UMCO

requested the Board’s expedited consideration. One

day later, on December 3, 2004, UMCO filed a motion

for stay of appeal in anticipation of the Commonwealth

Court’s review. This motion was denied as premature

on December 10, 2004 because the Board had not yet

ruled on UMCO’s petition to amend the Board Order.

On December 13, 2004, we denied UMCO’s petition to

amend the Board Order. UMCO Energy, Inc. v. DEP,

2004 EHB 832. We held that a supersedeas ruling is

an inappropriate vehicle for bringing issues before the

Commonwealth Court. UMCO nevertheless filed a

petition for review with the Commonwealth Court on

December 22, 2004. The Commonwealth Court rejected

UMCO’s petition on January 4, 2005.

On February 2, 2005, UMCO filed a motion to

amend its notice of appeal. UMCO dramatically

49a

reduced the number of objections contained in its

original appeal in order to streamline the proceedings

as much as possible. Among other things, UMCO

deleted its objection that the Department had acted

unreasonably and abused its discretion in issuing the

Order. UMCO’s amended appeal was limited to three

legal issues, which will be discussed in detail below.

We granted UMCO’s unopposed motion to amend on

February 23, 2005.

On February 14, 2005, the Board issued a Pre-

Hearing Order requiring all discovery including expert

discovery to be completed by May 20, 2005. We

scheduled a hearing on the merits for June 20, 2005.

A week later, on February 23, 2005, UMCO filed a

petition for extraordinary relief with the Pennsylvania

Supreme Court. UMCO asked the Court to assume

King’s Beneh jurisdiction over the case. The Court

denied ‘)MCO’s petition for extraordinary relief on

May 23, 2005.

After filing the petition for extraordinary relief,

UMCO publicly announced that it would be closing the

High Quality Mine. As a result, the Department filed

a motion to dismiss UMCO’s appeal as moot. The

Board denied the Department’s motion to dismiss on

May 2, 2005.

Meanwhile, on May 20, 2005, the date by which all

discovery was to be completed in the Board’s

proceedings, UMCO had failed to designate any expert

witnesses, provide any expert reports, or otherwise

respond to the Department’s expert interrogatories.

On June 8, 2005, the Department filed a motion in

50a

limine to preclude UMCO from presenting any

testimony from experts that it had failed to identify by

the discovery deadline. At no time before or after the

deadline cid UMCO seek an extension from the Board.

On June 13, 2005, one week before the scheduled

hearing date, UMCO designated several experts for

the first time. On June 15, 2005, we denied the

Department’s motion in limine, but we postponed the

hearing until September 19, 2005 in order to provide

the Department with an opportunity to conduct

discovery regarding the newly identified experts.

On June 28, 2005, UMCO filed a petition with the

Commonwealth Court to review the Board’s June 15,

2005 Order postponing the hearing until September.

The Department and PennFuture wrote to the Board

to state their understanding that UMCO’s

interlocutory appeal stayed all activity in the Board’s

proceedings. They pointed out that a further

postponement of the hearing on the merits would be

required pending the Commonwealth’s Court review of

whether the Board had erred in postponing the

hearing due to UMCO’s discovery violations. Before

we had a chance to react, UMCO voluntarily withdrew

its petition for review with the Commonwealth Court.

We held a hearing on the merits from September 19

through 30, 2005. The parties stipulated and we

agreed that the supersedeas record would be

incorporated in its entirety into the record on the

merits. Altogether, there were thirteen days of

testimony resulting in 2,464 pages of transcript and

dozens of exhibits. The last post-hearing brief was filed

on May 12, 2006.

5la

On April 10, 2006, UMWA, which had actively

participated in the Board proceedings throughout the

entire course of the litigation, filed a motion to

withdraw as intervenor without explanation. We

granted the unopposed motion.

FINDINGS OF FACT

The Parties

1. The Department is the agency of the

Commonwealth that has the duty and authority to

administer and enforce the Bituminous Mine

Subsidence and Land Conservation Act, 52 P.S.

§ 1406.1 et seg. (“Mine Subsidence Act”), the Clean

Streams Law, 35 P.S. § 691.1 et seq. (“Clean Streams

Law”), Section 1917-A of the Administrative Code of

1929, 71 P.S. § 510-17 (“Administrative Code”), and

the rules and regulations promulgated under those

statutes. (Joint Stipulation (“J.S.”) J 13.)

2. UMCO is a Pennsylvania corporation with a

mailing address of 981 Route 917, Bentleyville,

Washington County, Pennsylvania 15314. UMCO

engaged in the mining of coal by the underground

method in Pennsylvania pursuant to License No. 5121.

(J.S. 4 14.)

3. UMCO is a wholly owned subsidiary of Maple

Creek Mining, Inc., a Pennsylvania corporation. Maple

Creek Mining is a subsidiary of Murray Energy, Inc.

(Notes of transcript from the hearimg on the merits,

page (hereinafter “l’.”) 772; Notes of transcript from

the supersedeas hearing, page (hereimafler “S.T.”) 20;

PennFuture Exhibit (“P.F.Ex.”) 10.)

52a

4. PennFuture is a Pennsylvania nonprofit

corporation with a mailing address of 425 Sixth

Avenue, Suite 2770, Pittsburgh, Pennsylvania 15219.

(J.S. ¥ 15.)

The Site

5. UMCO operates the High Quality Mine, an

underground bituminous coal mine located in

Fallowfield Township, Washington County, pursuant

to Coal Mining Activity Permit No. 63921301. P.F.Ex.

10; UMCO Hearing Exhibit (“U.Ex.”) 55.

6. UMCO mined the Pittsburgh Coal Seam at the

High Quality Mine. (S.T. 295; T. 1010.)

7. The Department initially issued Permit No.

63921301 on June 8, 1994. At that time, the permit

authorized coal extraction by the room and pillar

method. (S.T. 824, 827.) When the permit was first

issued, UMCO was not owned by Maple Creek. (S.T.

23-24, 824; T. 174; P.F.Ex. 10.)

8. On June 2, 1997, the permit was revised to

reflect the sale of UMCO to Maple Creek. The permit

was renewed in November 1999. (T. 72; P.F.Ex. 10;

UMCO Supersedeas Exhibit (“U.S.Ex.”) L.)

9. The permit was revised on May 6, 2002 to add

acreage and allow both full extraction longwall mining

and room and pillar mining. (S.T. 824, 827, 890; T.

176, 265, 743; U.S.Ex. I; U.Ex. 55.)

10. Although room and pillar mining is still

authorized by the permit, UMCO has concentrated on

53a

longwall mining, except for development mining

needed to perform longwall mining. (S.T. 66-67, 827;

U.Ex. 14V.)

11. Longwall mining involves full extraction of

virtually all of the coal by large machines within a

defined rectangular area known as a panel. The

machine moves through the panel and the mine roof

collapses immediately behind the machine. (S.T. 265-

66; T. 1770-71.)

12. UMCO proposed as part of the 2002 permit

revision that longwall mining would be conducted in

panels designated 1 through 11 (with subdesignations

of east or west), and that room and pillar mining

would be conducted in other designated areas within

the permit boundary. (Commonwealth Hearing Exhibit

(“C.Ex.”) 12; U.Ex. 14V.)

13. The permit revision imposed “no subsidence

zones” on certain segments of streams above the mine.

The “no subsidence zones” were created because

UMCO was anxious to begin mini.g but lacked

sufficient information about the streams to evaluate

the impact of subsidence from longwall mining on

those streams. (S.T. 215, 491-93; T. 172-74, 274-75.)

14. The zones were represented as crosshatched

areas on six-month mine maps submitted to the

Department by UMCO for the mine as “no subsidence

pending further hydrologic review.” (S.T. 491, 493.)

15. Longwall mining was not allowed within no

subsidence zones until hydrologic information for that

portion of the stream to be undermined was submitted

54a

to the Department and the Department agreed to lift

the no subsidence zone. (S.T. 491; P.F.Ex. 1, 2, 8, 10,

19, 25.)

16. No subsidence zones were designated for

streams that were depicted as perennial streams on

United States Geologic Survey topographic maps. (S.T.

492; T. 172-74, 275; P.F.Ex. 2.)

17. There are two key streams in this case. The

first, which is indirectly relevant, is an unnamed

tributary to Maple Creek that runs north to south

across Panels 3B, 4E, and 5E (the “4E/5E Stream”). (T.

31-32; C.Ex. 18.)

18. The second stream, which is directly at issue, is

another unnamed tributary to Maple Creek that

originates at the Rakosky Spring on the 4E Panel,

flows in a southerly direction across Panel 5E, and

then flows approximately west to east along the length

of Panel 6E (the “6E Stream”). There are several

springs, seeps, and wetlands that feed into the stream.

(S.T. 690-91, 801; T. 33-34; Commonwealth

Supersedeas Exhibit (“C.S.Ex.”) 12; C.Ex. 18.) The

4E/5E and 6E Streams join to form a single stream

south and east of the 6E Panel. That third unnamed

tributary in turn flows into Maple Creek. (C.S.Ex. 12;

C.Ex. 18.)

19. The 4E/5E and 6E Streams are first-order

streams, also known as headwaters streams or upland

valley streams. (S.T. 350; T. 245, 256.)

20. The 6E Stream is at least 2,600 feet long. (U.Ex.

16.)

55a

21. The entire length of the 4E/5E Stream was

designated as a no subsidence zone. (P.F.Ex. 1, 2, 8,

10, 19, 25.)

22. The 6E Stream was not designated as a “no

subsidence zone” and it was not shown on some of the

early permit maps. (T. 101; C.Ex. 26.)

23. The streams above the mine are classified as

warm water fisheries. (25 Pa. Code § 93.9; T. 249.)

24. In addition to being a warm water fishery, the

6E Stream serves as a drinking water source for cattle

and wildlife. (T. 281.) Although the 6E Stream

contributes to the flow of Maple Creek, it is too small

itself to be used for swimming or boating, and it does

not serve as a source of drinking water for human

consumption. (T. 250.)

The 3E Panel

25. UMCO submitted an “informal permit revision”

to the Department asking to eliminate the no

subsidence zone for the 4E/5E Stream above the 3E

Panel. UMCO’s’ submission was based upon

photographic evidence depicting the stream above the

3E Panel as ephemeral to intermittent. (T. 276-77;

P.F.Ex. 2.)

26. On November 14, 2003, the Department

granted UMCO’s “informal permit revision” and

eliminated the no subsidence zone for the portion of

the stream above the 3E Panel. The Department did

not require a mitigation plan for the stream. (P.F.Ex.

1.)

56a

27. There was no perennial flow in the section of

the 4E/5E Stream above the 3E Panel and there was

not much of a stream channel over the 3E Panel. (T.

276.)

28. The Department lifted the no subsidence zone

in the 3E Panel because UMCO’s photographs showed

that there was no flow in the 4E/5E Stream at that

location at the time the photographs were taken, the

Department believed there was sufficient cover

(overburden) between the coal seam and the stream to

protect the stream (approximately 320-330 feet), and

the characteristics of the stream at that location were

not consistent with perennial flow. (S.T. 139, 143-45,

500-02, 513-14; T. 175-76, 276; U.S.Ex. AA.)

29. UMCO longwall mined the 3E Panel. (S.T. 145.)

30. UMCO’s longwall mining in Panel 3E created

more subsidence damage on the surface than expected,

as exhibited by extensive damage to several homes and

substantial surface distortions. (S.T. 692-96; 876-77;

C.S.Ex. 15A, B, C & D.)

31. These effects attracted the Department’s

attention regarding the potential threat to streams

and other potential impacts from longwall mining at

the site, particularly because the cover on Panel 3E

where the damage was first observed was deeper than

the cover on panels proposed for future longwall

mining. (S.T. 876.)

57a

The 4E Panel

32. UMCO next applied for an “informal permit

revision” to eliminate the no subsidence zone for the

section of the 4E/5E Stream above the 4E Panel.

(P.F.Ex. 8, 11.)

33. Part of the 4E/5E Stream over the 4E Panel was

perennial prior to mining. (S.T. 146, 153, 668; T. 62-64;

C.Ex. 18; U.S.Ex. 1.)

34. Two small intermittent tributaries flowed from

the east into the 4E/5E Stream in Panel 4E prior to

mining. (T. 62-64; C.Ex. 18.)

35. Cover in the 4E Panel ranged from 255 to 320

feet. (T. 1010; U.S.Ex. AA.)

36. Nothwithstanding its heightened concern given

the events that occurred in the 3E Panel, the

Department agreed to accept UMCO’s representation

that there would be no damage to the stream from

mining the 4E Panel. The Department lifted the no

subsidence zone on April 16, 2004. (S.T. 893-94;

P.F.Ex. 10, 11, pp. 8-11 to 8-16, 11; U.S.Ex. 1.)

37. Longwall mining occurred beneath the 4E/5E

Stream over Panel 4E in April and May 2004. (S.T.

147, 204.)

38. As longwall mining occurred beneath the

stream, flow was reduced and ultimately eliminated in

the stream and in the two intermittent tributaries to

the stream. (S.T. 148, 696-98; T. 41; C.S.Ex. 9, 16;

C.Ex. 19; P.F. Ex. 19; U.S.Ex. AA.)

58a

39. The stream segment remained dry for 18 days

between April 30, 2004 and May 17, 2004. (S.T. 698; T.

41; C.Ex. 19.)

40. UMCO attempted to restore flow in the stream

by filling cracks with bentonite clay and adding water

pumped from wells to the stream. UMCO’s efforts

failed to restore flow. (S.T. 148; C.Ex. 19.)

- 41. On May 20, 2004, the Department issued an

order that required UMCO to develop a plan to restore

the 4E/5E Stream above the 4E Panel. (T. 744.) UMCO

appealed that order to this Board at EHB Docket No.

2004-140-L. That appeal is pending.

42. Notwithstanding its appeal, beginning on or

about May 20, 2004, UMCO artificially reestablished

stream flow by adding public water from a Charleroi

Water Authority hydrant to the 4E/5E Stream

channel. (S.T. 809; T. 56-57; C.Ex. 19, 23.) Except for

several months in early 2005 (discussed further

below), UMCO added public water to tme stream from

the hydrant on an almost daily basis from May 20,

2004 to the time of the hearing. (The record in this

case closed on the last day of the hearing, September

30, 2005.) The rate of public water flow into the stream

has typically been between 60 and 80 gallons ver

minute. (S.T. 809; T. 56-57; C.Ex. 19, 20, 23.)

43. Since April 2004, the; two intermittent

tributaries to the 4E/5E Stream over Panel 4E have

exhibited no flow except in direct response to

significant precipitation events. (S.T. 687; T. 62-64,

155; C.Ex. 18,19.)

59a

44. UMCO installed piezometer PZ-1 in the area of

the stream above the 4E Panel. (P.F.Ex. 11.) UMCO

sheared off PZ-1 when it longwall mined the 4E Panel,

eventually replacing it with another piezometer

designated PZ-1R. (T. 181.)

The 5E Panel

45. The Department advised UMCO as early as

April 2004 that it might not be allowed to longwaill

beneath streams above subsequent panels if its mining

activities in Panel 4E adversely affected the 4E/5E

Stream. (S.T. 877-78; T. 195.)

46. In May 2004, the Department advised UMCO

that, based upon the impacts of mining on the stream

segment above Panel 4E, the Department would not

allow further longwalil mining beneath the 4E/5E

Stream, specifically, the “continuous flow streams in

panels 5 or 6 East.” (S.T. 368, 878-80; T. 195, 304;

C.S.Ex. 7, 8.)

47. UMCO asked for the opportunity to

demonstrate that it could longwall mine while

preserving the 4E/5E Stream’s uses and hydrology.

The Department granted that request. (C.S.Ex. 8.)

48. UMCO’s mine plan for the 5E Panel contained

a no subsidence zone for the section of the 4E/5E

Stream above the panel. (P.F.Ex. 19.)

49. The entire length of the 4E/5E Stream above

he 5E Panel was perennial prior to mining. (S.T. 152-

53; C.Ex. 18.)

60a

50. On June 9, 2004, UMCO submitted an

“informal permit revision application” to allow

longwall mining under the 4E/5E Stream in the 5E

Panel. (P.F.S.Ex. F; P.F.Ex. 19.)

51. The cover between the coal and the stream on

5E was between 225 and 255 feet. (T. 1010; U.S.Ex.

AA.)

52. UMCO’s informal submission indicated that the

4E/5E Stream was supported by perched groundwater

aquifers created by fractured zones of bedrock that

existed above relatively impermeable strata. This

shallow groundwater system is separate and distinct

from the regional water table, i.e. the deeper

groundwater system. That is why the shallow system

is referred to as “perched.” (P.F.Ex. 19, p. 8-1.)

53. UMCO’s submission concluded that the

potential existed for a temporary loss of flow to the

stream above the 5E Panel, but that mining could

occur without long-term adverse impacts. (P.F.Ex. 19,

p. 8-11.)

54. UMCO conceded that the stream above the 4E

Panel experienced an ongoing flow loss as a result of

its prior mining, but it argued that flow would

eventually recover. (P.F.Ex. 19, p. 8-16.)

55. The Department asked UMCO what it meant

by a “temporary” flow loss. On June 23, 2004, UMCO

submitted additional information regarding the

stream. UMCO predicted that flow in the 5E section of

the stream would be lost, but it would return to

6la

premining conditions within eight to sixteen weeks.

(C.Ex. 32; P.F.Ex. 16.)

56. On July 7, 2004, the Department’s

hydrogeologist and lead permit reviewer, John Kernic,

recommended against lifting the no subsidence zone.

Kernic referred to the lack of sufficient groundwater

data to properly characterize premining hydrologic

conditions for the 5E Panel. Kernic expressed concern

that the dewatering that had occurred as a result

longwall mining under the stream in the 4E Panel

would repeat itself in the 5E Panel. (T. 224; P.F.Ex.

46.)

57. On July 8, 2004, the Department denied

UMCO?’s application to revise its subsidence control

plan to allow longwall mining beneath the 4E/5E

Stream within the 5E Panel (i.e. it refused to lift the

no subsidence zone). (T. 308; P.F.Ex. 45.)

58. After meetings with the Department locally and

in Harrisburg, UMCO submitted additional materials

in an effort to obtain the Department’s approval to

longwall mine under the 4E/5E Stream in the 5E

Panel. (S.T. 494; T. 974.)

59. On July 22, 2004, the Department reversed

itself and revised UMCO’s permit to authorize

longwall mining beneath the 4E/5E Stream in 5E

Panel. (S.T. 894; P.F.Ex. 25.)

60. The Department allowed the mining of Panel

5E to go forward because some Departmental

personnel, particularly in Harrisburg, accepted

UMCO’s representation that the stream dewatering

62a

would last only three to six months and UMCO

submitted a mitigation plan that included (i)

temporary flow augmentation with dechlorinated

public water during that period, (ii) premining

grouting of the stream channel, (iii) a $250,000 bond,

(iv) continuous flow monitoring during subsidence of

the stream, and (v) stream channel repairs as

required. (T. 155, 164-65, 308-312, 354-55; C.Ex. 19-20;

U.Ex. 119.)

61. Mining in the 5E Panel began on July 30, 2004.

(C.Ex. 20.) Mining occurred beneath the stream on or

about August 14-18, 2004. (C.Ex. 19.)

62. Because of the ongoing flow loss in the 4E/5E

Stream above the previously mined 4E Panel upstream

of the 5E Panel, UMCO continued to augment flow to

the 4E/5E Stream during the mining of the 5E Panel.

(C.Ex.20.)

63. As predicted, UMCO’s longwall mining of Panel

5E damaged the portion of the 4E/5E Stream over

Panel 5E and caused the stream segment to lose

natural flow. (C.Ex. 19 (August 2004 reports), 20;

U.S.Ex. AA.) UMCO carried out its commitment to

maintain flow with city water, seal surface cracks with

grout, and monitor the flow of the 4E/5E Stream above

the 5E Panel. (S.T. 154; T. 313.)

64. Premining stream grouting was not successful

in preventing stream damage and flow loss in the

4E/5E Stream above the 5E Panel. (T. 311; C.Ex. 19,

20.)

63a

65. Almost all flow was lost at the southern edge of

the 5E Panel (in the vicinity of a railway culvert) even

though UMCO was adding up to 120 gpm of public

water to the stream and UMCO had engaged in

premining mitigation efforts. (S.T. 817; T. 50-51, 133;

C.Ex. 19, 20.)

66. UMCO constructed a smal! dam and piping

system in an effort to convey water through a railway

culvert through which the stream formerly flowed in

order to maintain flow in the downstream section of

the 4E/5E Stream. (C_Ex. 19.)

The 6E Panel

67. The 4E/5E Stream flows perennially across the

eastern end of the 6E Panel as the panel was originally

depicted in UMCO’s mining plan. The 6GE Stream runs

roughly west to east along the length of the panel.

(S.T. 589, 892; C.Ex. 18.) There was a no subsidence

zone for that portion of the 4E/5E Stream that is

within the 6E Panel. In contrast, the 6E Stream was

not designated with a “no subsidence zone.” (S.T. 454,

463, 892.)

68. Cover in the 6E Panel where the 6E Stream is

located ranges from 210 to 315 feet. (S.T. 683, 685-86,

812-13; C_Ex. 18; U.Ex. AA.)

69. Given the absence of a “no subsidence zone”

designation, the permit did not restrict UMCO’s ability

to longwall mine beneath the 6E Stream as of August

200... (T. 264, 316, 320.)

64a

70. In order to avoid the no subsidence zone

associated with 4E/5E Stream in the 6E Panel, UMCO

modified its mine plan and shortened the 6E Panel to

begin mining west of that zone. In other werds, W MCO

did not seek permission to longwal! mine the portion of

the 6E Panel beneath the lowest reaches of the 4B/5E

Stream. (S.T. 454, 463, 489, 560, 892-93, T. 315.)

71. The Department told MOO that it had

continuing concern regarding miming of the 6E Panel.

In response, UMCO submitted a request at a July 22,

2004 meeting with the Department to characterize the

6E Stream as ephemeral. (S |. 168, 462-63; 839-40; T.

316-20; U.Ex. 76, 102.)

72. An intermittent stream flows off and on. An

ephemeral stream has even less regular flow than an

intermittent stream and only flows in direct response

to precipitation events. Ephemeral streams typically

do not have a well defined channels. (S.T. 167, 733; T.

276.)

73. UMCO submitted photographs to _ the

Department in support of its claim that the 6E Stream

was ephemeral. (T. 317.) The pictures showed that

there was no flow in one previously disturbed section

of the stream.

74. The Department rejected UMCO’s claim that

the 6E Stream was ephemeral. It decided that the 6E

Stream was perennial, with the exception of the

section depicted in UMCO’s photographs. That

particular segment appeared to have been previously

affected by third-party construction activity. The

Department requested that UMCO submit a

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hydrologic study to predict the effects of mining on the

6E Stream. (S.T. 168, 462-63, 640, 758-60, 881-82, 897,

902; T. 319-20; U.S.Ex. Y; U.Ex. 102.)

75. UMCO did not argue with the Department

regarding the perennial designation. (T. 318.) Instead,

on or about October 18, 2004, UMCO submitted a

hydrologic report for the 6E Panel prepared by Moody

and Associates. (S.T. 486, 567-68; U.Ex. AA.)

76. UMCO’s study stated that subsidence effects on

hydrology in the 6E Panel would be similar to those

experienced in the 4E and 5E Panels. (U.Ex. AA p. 10.)

The study concluded that temporary flow loss could be

_expected, but there would be no permanent loss of

values and uses. (S.T. 176, 203-04; U.S.Ex. AA.)

77. At the time it sought approval to mine 6E,

UMCO’s consultant reported that the 4E/5E Stream

continued to experience a loss of flow across the panel.

The consultant surmised that the water was flowing

somewhere in the shallow subsurface. It predicted a

similar result in the 6E Panel. (U.S.Ex. AA.)

78. UMCO committed to employ basically the same

mitigation measures to the 6E Stream as it employed

for the 4E/5E Stream. (T. 330, U.Ex. 11.)

79. The Department and UMCO had numerous

meetings, telephone calls, correspondence, and other

deliberations regarding the threat to the 6E Stream.

(S.T. 452, 486, 562-63, 833, 881-85, 901-03; T. 314-20,

332-40.)

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80. The Department concluded that longwalling

would cause permanent, irreparable damage to the 6E

Stream and the 6E hydrologic regime. (S.T. 817-21; T.

332-33; U.Ex. 120.)

81. The Department issued the order that is the

subject of this appeal on November 12, 2004 (the

“Order”). The Order modified UMCO’s permit by

prohibiting longwall mining in Panel 6E. Other

methods of mining the panel are permitted. (UMCO

Notice of Appeal Exhibit.)

82. UMCO would not have been able to satisfy

preexisting contractual time commitments with coal

extracted entirely from the High Quality Mine using

only room-andpillar mining of the 6E Panel (i.e.

mining with continuous miners). (T. 786, 800-01.)

83. UMCO’s business and mining plans were based

upon longwall mining, and it is safer and much more

profitable to longwall the Pittsburgh Coal Seam at the

High Quality Mine than it is to use other methods.

(S.T. 110-13, 344; T. 324, 791-92.)

84. The Order did not prevent UMCO from longwall

mining other panels at the site, and UMCO

subsequently began mining Panel 9E. (T. 736-37, 785;

U.Ex. 122.)

85. UMCO ceased mining of the 9E Panel when it

encountered adverse geological conditions. (T. 738;

C.Ex. 42-43.) In shutting down the entire mine, UMCO

cited the geological conditions and its frustration in

dealing witn the Department. (T. 992; C.Ex. 42-43.)

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86. Although it would not be a_ physical

impossibility to overcome the adverse geological

conditions (T. 794), it is questionable whether UMCO

would reopen the High Quality Mine if it were allowed

to longwall the 6E Panel. Overcoming the adverse

geologic conditions could result in tremendous costs.

(T. 739.) UMCO’s mining engineer has never overcome

such conditions to the degree discovered at the High

Quality Mine. (T. 739.) UMCO’s unwillingness to deal

with the Department in obtaining approval to mine

additional panels at the site has not subsided. (T. 789.)

UMCO has permanently closed the nearby Maple

Creek Mine, through which UMCO previously

conveyed its High Quality Mine coal. Therefore, it

would need to truck 12,000 tpd of material to its prep

plant. (T. 809-10.) UMCO has removed almost all of its

mining equipment from the High Quality Mine, ceased

ventilating and pumping the mine, relocated its

administrative functions, and erected mine seals. (T.

789-91, 808-09, 813.)

Additional Findings of Fact Regarding UMCO’s

Mining of Panels 3E through 5E

87. It is scientifically appropriate to consider the

effect of mining on the 5E watershed as a predictor of

what would happen to the 6E watershed if the 6E

Panel were longwall mined because the surface and

subsurface characteristics and features of the two

contiguous watersheds are very similar. (S.T. 309, 316,

726, 808-09, 885, 917, 927; T. 147, 239, 1029; U.Ex.

120.)

88. UMCO and its consultant proposed the 4E/5E

Stream as a comparison stream when making

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predictions at the 6E Panel because the 4E/5E and 6E

flows tended to mimic each other and the geology,

hydrology, and biological characteristics of the streams

and the areas of mining were about the same. (S.T.

157; U.S.Ex. AA.)

89. The 4E/5E Stream, like the 6E Stream, is an

upland valley headwater stream fed by precipitation

and shallow groundwater manifested as springs, seeps,

and baseflow. (S.T. 808; T. 147, 885, 917.) From the

Panel 4E segment downstream, the 4E/5E Stream is

recharged by precipitation runoff and_ shallow

groundwater from springs, seeps and baseflow

emanating from perched aquifers. (S.T. 807-08; T. 140-

41, 147, 160, 192-93, 885, 916-17, 1730-31, 1782;

P.F.Ex. 19 p. 8-1.)

90. UMCO acknowledged in its submissions to the

Department that the 4E/5E Stream was perennial

prior to mining. (P.F.Ex. 19.)

91. The Department has required and continues to

require significantly more premining hydrologic and

biological stream data at other deep mines than it

required from UMCO before allowing mining beneath

the 4E/5E Stream. (S.T. 211-13; T. 1548-50, 1826-27.)

The absence of sufficient baseline data will make it

difficult to determine whether the 4E/5E Stream has

ever fully recovered. (S.T. 172, 205-09, 215,224, 455,

941; T. 1340, 1380, 1451-52, 1549-54, 1561-62; P.F. Ex.

46.)

92. One premining flow monitoring result taken

downstream of the confluence of the 6E and 4E/5E

Streams but just upstream of the unnamed tributary’s

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confluence with the main branch of Maple Creek

(Monitoring Point MC-3R-01) exhibited one flow rate

of 3 gallons per minute (“gpm”) premining. (T. 291-93,

390, 867-68; U.Ex. 132.)

93. Although this one datum is not particularly

meaningful (S.T. 180; T. 150, 333, 910), it does suggest

that there must have been dry sections somewhere in

the watershed before mining. (‘T. 290, 867-69.)

94. The cause of the single, low-flow result is not

known. (T. 83, 150-53, 292, 296-97.)

95. The result is not consistent with other sampling

results, which otherwise range from 18.99 to 2,539.5

gpm at that location. (T. 149-50; U.Ex. 132.)

96. All of the springs and seeps overlying Panel 2E

dried up following UMCO’s mining. (S.T. 689.)

97. All of the springs and seeps overlying Panel 3E

dried up immediately following UMCO’s mining. (S.T.

689.)

98. With the possible exception of a spring that has

some flow by the railroad culvert near the headwaters

of the 6E Stream, all of the other numerous springs

and seeps in the 4E and 5E Panels dried up

immediately following UMCO’s mining. Some of the

springs/seeps have short periods of flow after heavy

rain, but flow stops after three days or so. None of the

springs/seeps in these panels have recovered as of the

close of the record in this case. (S.T. 682-92, 724-35,

750-54, 806-07, 811, 818-20; T. 60-61, 64-68, 155, 161,

1835; C.S.Ex. 14, 18; C.Ex. 19.)

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99. The springs have not returned despite periods

of high precipitation. (S.T. 779, 811; T. 43, 115-18, 733-

34, 812; C.S.Ex. 10; C.Ex. 25, 28; U.Ex. 9.)

100. The springs include springs on the 4E/5E gate

roads, a spring known as the “horse spring” above the

4/5 gate entry, a spring in the 5E Panel near the

railroad culvert, the Rakosky Spring on the 4E Panel,

three springs on the Woodward property above the 4E

Panel, a spring on the Witherspoon property over the

2E Panel, and a spring on the Coulter property over

the 3E Panel. (S.T. 687-88, 751; T. 64-68; C.S.Ex. 14.)

101. UMCO’s predictions that the springs, seeps,

and streams overlying its former mining would fully

recover and that they would do so in short order have

not proven to be accurate. (T. 160-65; C.Ex. 31.)

102. The two small formerly intermittent

tributaries over the 4E Panel flowing into the 4E/5E

Stream now only flow ephemerally, which is to say

after precipitation events only. (T. 62, 72; U.Ex. 9.)

103. UMCO’s mining caused subsidence damage

that dewatered the 4E/5E stream. (S.T. 218, 390, 402-

03, 749-50, 768, 817; T. 50-51, 133; C.Ex. 19, 20.)

104. The 4E/5E Stream has not as yet recovered.

Perennial! flow has not as of the close of the record

returned to the 4E/5E Stream. (S.T. 944-47, 988; T.

154-55, 162, 1114, 1823-24, 1534-35; C.Ex. 19-21, 41,

P.F.S.Ex. G, H (See also S.T. 808-09).)

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105. UMCO is required to maintain 25 gpm of flow

at a downstream monitoring point on the 4E/5E

Stream. (T. 1351-52, 1650, 1660.)

106. UMCO must discharge as much as 80 gpm of

city water into the channel at the stream’s former

headwaters on a regular basis in order to obtain 25

gpm at the downstream monitoring point. (S.T. 405.)

107. UMCO pumped a total of 28,340,000 gallons of

public water into the 4E/5E Stream between May 20,

2004 and September 16, 2005. (T. 57, 778; C.Ex. 20.)

108. There is currently insufficient data or research

to assess the protracted, long-term impact of

augmenting a stream with dechlorinated municipal

drinking water. (S.T. 665, 1327-28, 1344-45, 1352,

1497-98, 1508.)

109. UMCO discontinued city water augmentation

on September 8, 2004 because of heavy rainfall caused

by the remnants of Hurricane Francis. Although 4.2

inches of rain fell on the area in a 24-hour period, the

4E/5E Stream was dry on the morning after. (S.T. 748-

50, 768; C.S.Ex. 9; C.Ex. 20.) UMCO thereafter

resumed city water augmentation. (S.T. 468; C.S.Ex.

9; C.Ex. 19-20.)

110. In January 2005, UMCO asked the

Department ifit could discontinue augmentation of the

stream to demonstrate that the stream had recovered.

(T. 45-46.)

111. The Department agreed to the demonstration.

(T. 45-46.)

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112. UMCO turned off the hydrant. It appeared for

a time that there might be natural flow, but beginning

in mid-April 2005, the 4E/5E Stream began to lose

flow. (T. 49-50; C.Ex. 19 (April 1, 2005 — April 19,

2005), 20-21.)

113. By late April/early May 2005, portions of the

4E/5E Stream were barely flowing. (T. 131-36; C.Ex.

19 (April 27, 2005 — April 28, 2005), 20.)

114. Dry stream segments appeared by early May,

and increased in length until May 16, 2005 when the

entire stream over the 4E Panel and 5E Panel was dry

except for a 90-foot segment on the southern part of

Panel 4E and a few odd puddles. (S.T. 202, 749-50,

768; T. 51-54, 1341-43, 1350, 1653-59, 1670; C.S.Ex. 9;

C.Ex. 19 (May 2, 2005 — May 17, 2005), 20-22-A, 23,

27; U.Ex. 220.)

115. The 4E/5E Stream went dry along virtually its

entire length over the 4E Panel and 5E Panel in May

2005 despite higher than normal precipitation as

evidenced by precipitation records and lush vegetation.

This period is the only period of any length to date that

the 4E/5E Stream was not continuously augmented,

and the absence of significant natural flow during this

period indicates that, so far, the stream is entirely

dependent on augmentation. (T. 54-55, 118-19; C.Ex.

21, 23, 25, 27; P.F.S.Ex. G, H.)

116. The 6E Stream continued to flow during this

period. (T. 50, 55, 112, 136-37; C.Ex. 2, 19, 20, 21E.)

117. Other similar streams in the vicinity of the

mining (C.Ex. 26) continued to flow during the period

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that the 4E/5E Stream dried up. (T. 55, 107, 135-36;

C.Ex. 19-21, 23, 26-27.)

118. UMCO resumed public water augmentation of

the 4E/5E Stream on May 18, 2005. (T. 46, 56; C.Ex.

19-20.)

119. Although surface cracks from subsidence that

are not visible to the naked eye can drain a stream (T.

147), fractures were in fact visible in the 4E/5E Stream

channel. (S.T. 697, 939; T. 160; C.S.Ex. 16.)

120. Headwater streams like the 4E/5E Stream

naturally go dry in some sections from time to time. (T.

256, 1332-39, 1379, 1466-72, 1645; U.Ex. 280.)

121. A sewer line running parallel to the 4E/5E

Stream predated UMCO’s mining. (T. 299.) The sewer

line was replaced or repaired in April 2005. The sewer

line trench may or may not intercept some shallow

groundwater or surface flow that might otherwise find

its way into the 4E/5E Stream before and after mining.

(T. 131, 296-99, 404, 408, 860-62, 899, 920.)

122. UMCO’s “premining” biological survey of the

4E/5E Stream over the 4E Panel was actually

conducted after mining of the 3E Panel. (T. 1552.)

123. UMCO'’s “premining” biological survey of the

4E/5E Stream over the 5E Panel actually occurred

after the mining of 3E and 4E. (T. 1554.)

124. UMCO’s biological surveys of the 4E/5E

Stream have shown that the 4E/5E Stream channel,

when filled with city water, is currently supporting a

74a

warm water fishery. (T. 1321, 1412-13, 1489-97, 1505-

07; U.Ex. 169, 171-73, 176-77.) Fish have been

observed in the artificially maintained stream. (T.

1320, 1412, 1505.)

125. No meaningful conclusions can be drawn as

yet from UMCO’s biological data regarding the long-

term ability of the 4E/5E Stream to support a warm

water fishery because of (a) the dearth of premining

data, (b) the lack of long-term data, and (c) UMCO’s

nearly constant augmentation. (T. 1317, 1342-43,

1502, 1516, 1549, 1561-62, 1564, 1569.)

126. Augmentation must be turned off for an

extended period of time for the results to accurately

reflect natural trends, and that has not occurred. (S.T.

947; T. 1560.)

127. Although UMCO’s “premining” survey results

must be qualified as not true background, they

nevertheless show that the 4E/5E Stream supported a

warm water fishery even after having suffered

subsidence effects from upstream mining. (T. 1489-90,

1511.) This is consistent with the Department’s biology

expert’s opinion, which we find credible, that the

4E/5E Stream was a perennial stream that supported

a warm water fishery prior to mining. (T. 1316-17;

U.Ex. 130.)

128. UMCO’s expert hydrogeologist, Joseph

Bonetti, did not dispute that UMCO’s mining

adversely affected the 4E/5E Stream. (T. 888.)

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129. There is insufficient flow data to assess

whether the 4E/5E has recovered at this time. (S.T.

945-46; P.F.S.Ex. G, H.)

130. Dr. Bonetti’s opinion is based in part on

UMCO’s flow monitoring data (T. 1690-96, 1719-21),

but those flow monitoring results contain many

deficiencies, including failures to follow proper

procedures and protocols, errors, anomalies and poor

practices. The flow monitoring results are admissible,

but they can be accorded little weight. The data are

particularly suspect where they were obtained at

sampling locations that had less than two inches of

flow. (T. 484-90, 506, 528-89, 622-30, 632-41; C.Ex. 36-

38; U.Ex. 17-18, 212.)

131. UMCO installed piezometers on the site.

(C.Ex. 30; P.F. Ex. 66; U.Ex. 14 C, D.)

132. The piezometers were installed in an effort to

measure the effects of mining on the regional

groundwater table. (The deeper, more extensive

regional groundwater table is to be distinguished from

the local shallow perched aquifers and surface waters

that are at issue in this appeal.) (S.T. 821-22; T. 139-

43, 327-28, 454, 916-18.)

133. The piezometer data provides no meaningful

information regarding the perched aquifers or the

recovery of the shallow water systems at issue in this

case. The regional groundwater table does not

recharge the 4E/5E or 6E Streams. (S.T. 821-22; T.

140-43, 327-28, 454, 916-18, 1114, 1777.)

76a

134. The piezometer data is_ essentially

meaningless because it does not appear that the

piezometers were properly installed, and there is

insufficient data to allow for a meaningful

interpretation of long-term trends or to distinguish

between natural and mining-induced effects. (T. 893,

915, 1152, 1236, 1779-80.)

135. Accepting for purposes of discussion that the

piezometer data is valid, the data does not reveal that

deep groundwater is recovering at the 5E site as

measured over the longterm. A plot of existing

groundwater data after application of linear regression

analysis shows that groundwater elevations in the PZ-

1R, PZ-2 and PZ-3 piezometers were trending

downward for the period January 2005 through

August 2005. (T. 1776-77, 1794; P.F.Ex. 66.)

136. Dr. Bonetti’s opinion that the piczometer data

suggests that the groundwater system is recovering

“as a whole” (T. 857-58, 917-22), coupled with his

concession that the piezometer data has no connection

to stream conditions (T. 917-18), negatively affects his

credibility.

137. Dr. Bonetti’s opinion that the 4E/5E Stream

“is recovering and may be fully recovered” (T. 867-71)

is not consistent with the evidence, is inconsistent with

UMCO’s expert biologist’s opinion that it is too early to

tell, and is otherwise not credible. (Finding of Fact

(“FOF”) 98-108, 125, 129-36.)

138. The long-term dewatering of the 4E/5E

watershed provides compelling evidence that the 6E

watershed will also be dewatered long term if UMCO

77a

longwall mines underneath it. (S.T. 219, 808-09, 988;

T. 147, 239, 929: FOF 87-137.)

The 6E Stream is a Perennial Stream

139. The 6E watershed is approximately 185 acres.

(T. 106; C.Ex. 12.)

140. Of those 185 acres, 76 acres have already been

longwall mined and 33 acres have been development

mined. (S.T. 810-11; T. 106; C.Ex. 12, 18.) UMCO has

already mined under approximately 58 percent of the

6E Stream’s watershed. (T. 106.) In comparison, the

5E watershed is 118 acres, 75 percent of which was

mined. (T. 107; C.Ex. 26.)

141. UMCO’s mining to date has caused that

headwater portion of the 6E Stream that is above the

railway culvert to dry up much of the time. (S.T. 724,

766, 780; T. 59, 110-11; C.Ex. 12, 18.)

142. UMCO’s mining in the 6E Stream’s watershed

has already diminished the flow of the 6E Stream. (T.

156-57.)

143. After the Department rejected UMCO’s initial

attempt to characterize the stream as ephemeral,

UMCO agreed to treat the 6E Stream as a perennial

stream. (T. 463; U.Ex. 119.)

144. The 6E Stream is designated on the USGS

map and in Soil Conservation Service documents as an

intermittent stream. (T. 318.) Designations on USGS

topographic maps are usually not based on ground

surveys and are not controlling in assessing whether

78a

a stream is actually ephemeral, intermittent, or

perennial. (S.T. 199, 955.)

145. There are 11 springs and seeps in the 6E

Panel. (S.T. 185-87; T. 1729.) The springs are above

the elevation of the 6E Stream and flow into the

stream. (T. 1729-30.)

146. Some but not all of the springs and seeps that

contribute part of the flow of the 6E Stream dry up

seasonally. (S.T. 128, 130, 185-89, 196; T. 60, 400-01,

406, 923; C.Ex. 19; U.Ex. 142, 219.)

147. There are wetlands adjacent to the 6E Stream.

(S.T. 129, 183, 371-72, 755; U.Ex. 102.)

148. The wetlands contain obligate plant species,

which require hydric soils or standing water and are

found in wetlands the vast majority of the time. (S.T.

647.)

149. The 6E Stream, springs, and wetlands have

historically been used to water livestock, even through

periods of drought. (S.T. 129-130, 188; T. 333.)

150. The 6E Stream has a well-defined channel

about two to three feet wide and about one to three

feet deep, which lays within a broader, shallower

channel that is 20 to 30 feet wide. (S.T. 167; T. 1061;

C.S.Ex. 17; U.Ex.142, 219.)

151. The appearance of the 6E Stream’s channel is

indicative of perennial flow. (S.T. 645-46; C.S.Ex. 17.)

79a

152. The bed and substrate of the 6E Stream is

indicative of perennial flow, as evidenced by erosion

marks and characteristic deposition of gravel and silt.

(S.T. 645-46; C.S.Ex. 17.)

153. There are fish in the 6E Stream, even during

periods of drought. (T. 1831-32, 1412, 1414, 1504.)

154. The 6E Stream is supporting a warm water

fishery. (T. 1414, 1500-06, 1509, 1528, 1531, 1558,

1561, 1569.)

155. The Department has observed long-lived

macroinvertebrates in the 6E Stream that require flow

in the stream for two to three years in order to go

through their observed life cycle. There are also fish of

different year-groups. (S.T. 645-46, 658, 661.)

156. The 6E Stream supports a_ benthic

macroinvertebrate community which is composed of

two or more recognizable taxonomic groups of

organisms which are large enough to be seen by the

unaided eye and can be retained by U.S. Standard No.

30 sieve and live part of their life cycles within or upon

available substrates in a body of water or other water

transport system. (S.T. 640-41; T. 1516.)

157. The fact that the 6E Stream supports a diverse

and long-lived benthic community is scientifically

appropriate evidence that water flows continuously in

the stream and the stream is perennial. (T. 1516.)

158. Portions of the 6E Stream in fact flow

continuously throughout the calendar year, even

during periods of drought. (S.T. 128, 130, 803; T. 156-

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57, 400-01, 407, 766, 1331, 1340, 1409, 1503; C.S.Ex.

17; U.Ex. 102, 142, 219.)

159. There is a man-made disturbance near the

downstream end of the 6E Stream. The disturbed

section is approximately 200 to 300 feet long. The

disturbance was probably associated with the

installation of a municipal sewer line. (S.T. 171, 173,

230, 514; 648-49, 657, 758; T. 357; U.Ex. 14-CC.)

160. The disturbed section of the streambed goes

dry. Except during periods of high flow, some or all

water flowing down the stream channel goes

underground at the point of the disturbance. It is not

known where the water resurfaces. (S.T. 150, 166-67,

758, 770, 775-76, 948; T. 73-74, 90, 93; U.Ex. 14-CC,

76, 142, 157, 215, 219.)

161. In addition to the disturbed area, other

portions of the 6E Stream have gone dry during

periods of drought (S.T. 128, 131, 136; T. 62, 92-93,

1331, 1340, 1409), but the entire stream has not been

seen to go dry even in periods of drought (FOF 146,

158).

162. Up to the point of the man-made disturbance,

the 6E Stream loses some flow through its porous

channel to the subsurface, but it usually picks up more

flow from the perched aquifer than it loses back to the

ground, which makes it a net gaining stream. (T. 246-

47, 299, 846.)

163. The Department’s well-qualified biologist’s

credible expert opinion is that the 6E Stream is

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perennial. (S.T. 640.) UMCO offered no contradictory

expert opinion.

164. The 6E Stream is a perennia)] stream. (FOF

146-163.)

The Height of the Coal Seam

165. The height of the Pittsburgh Coal Seam in the

6E Panel ranges from approximately seven to ten feet.

(S.T. 74, 295; T. 1010, 1242, 1803; P.F.Ex. 65; U.S.Ex.

AA.)

166. Some UMCO witnesses stated that UMCO

might mine only six or seven feet of the coal at some or

all points on the panel. (S.T. 297, 367, 424; T. 1024,

1242; U.Ex.14L, 14M, 14P, 14R.) That supposition is

not grounded on anything in any permit, order,

regulation, or other enforceable document. The six-foot

mining assumption is not included in UMCO’s stream

mitigation measures, and there is no binding or

enforceable limitation on the height of UMCO’s

mining. (S.T. 823-24; T. 1107, 1831.) The only actual

limitation on the height of the mining is the height of

the coal seam. (T. 1831.)

167. UMCO’s proposal at the hearing to mine only

six feet of coal is not consistent with its past mining

practices or future plan or industry longwalling

practice, it is not reflected in any reserve estimates,

and it has not been shown to be enforceable as a

practical matter. (S.T. 307.)

168. The opinion of UMCO’s subsidence expert,

Robert Bruhn, regarding the extent and reach of

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anticipated subsidence effects above the 6E Panel was

based in part on an inaccurate assumption that only

six or seven feet of coal would be mined throughout the

panel. (U.Ex. 14L, 14M, 14-0, 14R.)

Hydrogeology of the GE Pancl

169. The 6E system is known as an upland valley

hydrologic regime. (T. 141; C.Ex. 29.)

170. The 6E Stream, springs, seeps, and wetlands

are all surface manifestations of perched aquifers, i.e.

shallow groundwater and some precipitation runoff.

(S.T. 321, 803; T. 140-42, 168, 189, 234-37, 242-43, 454,

843, 873, 885, 916, 925, 1095, 1216-18, 1730-31, 1758,

1769, 1829; U.S.Ex. AA; U.Ex. 120.)

171. Rainwater and shallow groundwater in 6E

percolates downward in the 6E Stream’s watershed

until it encounters a zone of relatively reduced

permeability known as an aquitard or a confining

layer. (T. 141, 234-37, 242, 842-43, 872-73, 916, 925,

1095, 1216, 1730-31.)

172. Some of the groundwater encountering an

aquitard then moves laterally. If the groundwater

intercepts the ground surface, it is manifested as a

spring, seep, wetland, or stream baseflow. It is all the

same system, part of which is underground and part of

which is above the surface. This is the basic hydrologic

cycle or hydrologic balance at issue in this case. (T.

187-88, 841.)

173. Some water also moves laterally through the

soil horizon. (T. 141.)

83a

174. The movement of water in the 6E Panel tends

to be through soils, the soil/rock interface, and

secondary fractures in the rock strata, not through

pores in the rock itself. (T. 183, 842, 1217.)

175. The secondary fractures, and therefore the

direction of shallow groundwater flow, tend to mimic

topography. (T. 183, 848; C.S.Ex. 13 (illustration).)

176. The larger regional groundwater system does

not contribute recharge to the perched 6E system. The

regional water table is significantly below the shallow

6E system that is at issue in this case. (T. 142-43, 285,

335, 846, 915-17, 1769; C.S. Ex. 13; U.Ex. 120.)

177. In evaluating and predicting the potential

effects of subsidence on the 6E upland valley

hydrologic regime, there is no reason to distinguish

what percentage of the flow in the 6E Stream channel

comes from springs, seeps, or wetlands, where water

happens to flow over the surface immediately before

entering the stream, and groundwater that happens to

flow directly into the stream itself through the bottom

and sides of the stream channel (i.e. baseflow). (S.T.

823, 830; T. 873, 916.)

178. There is no scientific or other reason to

differentiate the relative contribution of surface and

subsurface water flowing into the 6E Stream because

it is the impact of mining on the perched system as a

whole that matters. (T. 235, 873, 916, 1782-83.)

179. UMCO’s consultant reported that “[t]he base

flow for the unnamed tributary of the 6 East panel is

derived primarily from the upland local shallow

84a

perched groundwater flow system. This is supported

by the number of springs and wet areas observed

above the stream valley that contribute flow to the

stream.” (U.S.Ex. AA.)

180. In the 6E hydrologic regime, it is the effect of

the mining subsidence on the aquitards that has the

most significance because it is those aquitards that are

responsible for the formation and continuation of the

perched groundwater system. (T. 1731; U.Ex. 120.)

181. The continuing existence and vitality of the 6E

Stream depends upon the integrity of the aquifer and

the shallow groundwater system as a whole, not the

ability of the stream channel to function as a ditch

capable of transporting water across the ground. (T.

1783; U.Ex. 120.)

Subsidence Generally

182. The 6E Panel is approximately 775 feet by

2730 feet. (T. 1010.)

183. Longwalling on the 6E Panel would have

proceeded from east to west. (T. 731, 1010.)

184. As a longwall machine cuts into a panel, the

lithologies and soils above the coal subside. This

process begins at the start gate and moves through the

entire panel. (S.T. 374, 921; T. 1205-07, 1752; U.S.Ex.

DD.)

185. In longwall mining, the roof above the coal

seam collapses and subsidence occurs almost

immediately. (S.T. 926.)

85a

186. The void spaces in the rubbleized zone at and

above the former coal seam gradually fill in to some

extent as the material settles in a longwall mine. (T.

1047, 1050, 1113.)

187. This settling can result in some residual

subsidence, but most of the subsidence that results

from longwall mining tends to occur immediately. (S.T.

926; T. 1033.)

188. Longwall mining does not typically create a

big, lingering, open sink as opined by UMCO’s

subsidence expert, Robert Bruhn. (T. 1772.)

189. Bruhn relied upon a photograph of room-and-

pillar mining in expressing his opinion regarding the

“mine void” caused by the longwall mining proposed

for the 6E Panel. (T. 1032, 1112, 1771; U.Ex. 14Q.)

190. Mining 7 feet of coal in the 6E Panel would

result in as much as four feet of subsidence at the

surface. (U.S.Ex. AA; U.Ex. 14L, 14R.)

191. The elevation and configuration of the 6E

Stream would have changed and dropped several feet.

(P.F.S.Ex. C, D; U.Ex. 14P.)

192. Subsidence caused by mining creates new

cracks or fractures and opens up or exacerbates

existing natural fractures. These fractures and cracks

are the primary pathways for intercepting water and

increasing vertical permeability, which can in turn

result in the loss or diminution of surface waters

features and/or groundwater at certain stratigraphic

levels. (T. 182-83, 1751, 1768-69, 1784.)

86a

193. In general, the greater the overburden

thickness and percentage of soft rocks in the

overburden sequence, the less the predicted adverse

impacts from longwall mining. (U.S.Ex. AA.)

194. The overburden thickness (cover) on the 6E

Panel ranges from approximately 210 feet in the east

to as much as 450 feet in portions of the west. Cover

under the stream ranges from 210 to 315 feet. (S.T.

296, 683-85, 812-13, 957; T. 1010; C.Ex. 18; U.S.Ex.

AA.)

195. The 6E Panel is considered a very low cover

mine. Anything less than 400 feet of cover is cause for

heightened concern regarding subsidence damage.

(S.T. 681, 803, 812-13, 820-21; T. 1592, 1629.)

196. There has been no known longwalling beneath

streams in western Pennsylvania with cover as

shallow as the High Quality Mine, and very little in

the United States documenting the effects of such

shallow longwall mining using modern methods.

(U.Ex. 9.)

197. When attempting to predict the surface effects

of subsidence, it is important to look at site-specific

information, including but not limited to the

subsidence effects of mining previous pancls at the

site. (T. 1762-63.)

198. UMCO’s subsidence expert, Mr. Bruhn, did not

consider any information regarding the 4E/5E Panels

and the 4E/5E Stream in making his predictions

regarding the 6E Panel and the 6E Stream. (T. 1059-

60.)

87a

199. The presence of preexisting natural fracturing

increases the potential that there will be adverse

subsidence effects to surface waters. (T. 1173-74.)

200. Drilling logs for boreholes installed in 6E show

preexisting, open fractures in the lithologies above the

coal seam. Although some of the fractures may have

been caused by the drilling itself, some of the fractures

were observed to be “weathered,” which indicates a

longterm preexisting condition. (T. 1007, 1140, 1173-

74, 1749-51, 1791; U.S.Ex. AA Appendix B; U.Ex. 191.)

Subsidence Viewed Vertically

201. Subsidence effects may be thought of

conceptually in two ways: vertically, i.e. slicing

through the strata; and aerially, i.e. from a bird’s eye

view. As to subsidence viewed vertically, two types of

subsidence cracks are relevant: (1) surface cracks and

(2) subsurface cracks propagating up from the depth of

the mined-out coal seam. (T. 108-09, 144, 375-78, 1121,

1751-52, 1764-67.)

Surface Cracks

202. Surface cracks from mine subsidence are

relevant because they may divert both surface water

and groundwater that feeds the 6E Stream. (T. 143-44,

377-78, 1766-67.)

203. Surface cracks are of concern not only in the

stream channel itself but in any areas that contribute

to the flow in the stream as well because the cracks

tend to rob flow from the stream. (S.T. 956-57.)

88a

204. Very small cracks can completely drain a

stream. (S.T. 697, 939; T. 147.)

205. Fracturing in the so-called surface fracture

zone will occur throughout the entire 6E Panel. (S.T.

923, 934-35; T. 238, 1114, 1121, 1751-52.)

206. Surface fractures have varying depths, but the

surface fracture zone tends to extend down about 50

feet, which is deep enough to disrupt the shallow

groundwater that feeds the 6E Stream. (T. 108-09,

144, 238, 1130.)

207. The surface fracture zone is generally

independent of the depth of cover. (T. 377-78; U.Ex. 14-

O.)

208. Surface cracks on the 6E panel would likely

have dewatered the 6E Stream and the other surface

water features. (U.S.Ex. AA.)

Subsurface Cracks

209. In predicting how far subsurface cracks will

propagate up from the mining, it is important to

consider the height of the seam to be mined, known as

“t.” That depth relative to the amount of overburden

cover over the mine is a key factor in predicting

whether adverse subsidence effects will manifest on

the surface or at key stratigraphic levels within the

cover. (‘T. 178-79.)

210. Experts multiply “t” by a theoretical number

to calculate the risk. Subsidence is based on numerous

variables, so there is no brightline number that can be

89a

guaranteed to accurately predict the actual vertical

propagation of the subsurface cracks, but the range is

24t to 60t. (T. 232, 1761-62; U.S.Ex. AA.)

211.The Department uses 45t as a benchmark. Any

mine where 45t intercepts the horizons of concern is

not necessarily prohibited, but it is cause for

heightened scrutiny. (S.T. 805; T. 231-32.) The 6E

Panel qualified for heightened scrutiny under this

standard, even assuming as little as six feet of coal

would be mined. (45 x 6 = 270 > 210.)

212. Francis S. Kendorsky did not testify, but his

work regarding subsidence fracturing is generally

accepted and was discussed by all the subsidence

experts in this case. Kendorsky has devised a

conceptual construct of how far up subsurface cracks

can be expected to propagate. (T. 232, 1026, 1123;

C.Ex. 40; U.Ex. 23.)

213. Kendorsky worked at one time for John

Morgan, PennFuture’s expert. Morgan has worked

closely with Kendorsky and has consulted Kendorsky

in connection with rendering his opinions in this case.

(T. 1759-64.)

214. Kendorsky’s construct was primarily designed

to assess the safety of mining under the ocean. (T.

1761; C.Ex. 40; U.Ex. 23.)

215. Kendorsky’s work was not intended as a

precise predictive model. It is conceptual in nature. (T.

1122, 1760-62; C.Ex. 40; U.Ex. 23.)

90a

216. Kendorsky postulates the following four zones

going from the bottom up:

Zone Description

Caved Zone

Fracture Zone

Middle Zone:

2 subzones:

1) Zone of

dilation

2) Zone of

continuous

deformation

Surface Zone

(T. 1022, 1212-15; C.Ex. 40; U.Ex. 23.)

Rock rubbleizes and

comes to rest on

mine floor

Height of fracturing

Increase in porosity

of rock but no

increase in

throughgoing

fractures

Some deformation

but no fractures

Height above

coal seam

6t — 30t

remainder

50 feet or so

down from

the

surface

217. The absence of fractures in the “zone of

continuous deformation” means that, all other things

being equal, the zone can theoretically serve as an

intact aquitard arresting further downward migration

of groundwater found above it into the mine workings.

(T. 1027-28, 1147.)

9la

218. In applying Kendorsky’s work, Bruhn

incorrectly concluded that the fracture zone extends up

from the top of the coal seam (T. 1022-26, 1145), when

in fact Kendorsky intended the fracture zone to start

at the cave zone. In other words, the fracture zone is

24t, but that 24t must be added on to the 6t cave zone

to determine the conceptual vertical reach of the

subsurface cracking. (T. 1759-65, 1794; C.Ex. 40; U.Ex.

23.) UMCO itself has referred to 30t as the appropriate

number in its submissions. (C.Ex. 31.)

219. Assuming the Pittsburgh Coal Seam is 6'10" at

the east end of the 6E Panel and cover is 210 feet,

Kendorsky’s postulated fracture zone will extend to

within five feet of the surface. (6.833 x 30t). Because

the surface zone extends down 50 feet, anywhere that

cover is less than 260 feet is problematic. (T. 1767-68.)

220. Even if Bruhn’s use of 24t instead of 30t was

appropriate, Kendorsky’s theoretical middle zone

would be four feet thick. (6.833 x 24t)(210-—50).

221. Bruhn’s speculation that a middle zone of as

little as one foot could stop the downward migration of

water over the entire panel is not credible. (T. 1145-46,

1760.)

222. In order to function as an aquitard, the

postulated middle zone would ideally be composed of

shale or be otherwise conducive to impeding flow

under natural conditions (T. 1213-14), but there is no

evidence that the rock strata found at Bruhn’s

postulated middle zone on the 6E Panel is of a type

that would be conducive to acting as an aquitard.

(P.F.Ex. 65.)

92a

223. The subsurface fractures propagating up from

the coal seam and the surface fractures propagating

down from the surface will both intersect and

compromise the strata serving as aquitards supporting

the perched aquifer system manifesting itself as the

stream, springs, and wetlands on the 6E Panel,

thereby resulting in the elimination of flow to the 6E

Stream. (S.T. 804-817; T. 844; C.S.Ex. 13 (illustration);

P.F.Ex. 65; U.Ex. 120; U.S.Ex. AA.)

224. There is unlikely to be any single fracture that

extends all the way from the coal seam to the surface,

but such throughgoing fractures are rare and their

absence is largely irrelevant in this case. (T. 144, 1768-

69.) !

225. UMCO’s piezometer data provides no

legitimate support for the theory (T. 1030) that there

would be a middle zone on the 6E Panel. (T. 1152.)

226. UMCO’s expert damaged his credibility by

opining that recovering water levels, static water

levels, and water levels decreasing in the piezometers

could all be evidence of a functioning middle zone. (T.

1153.)

227. UMCO’s longwall mining of the 6E Panel

would have caused extensive fracturing of the

aquitards that support the upland valley hydrologic

regime. (T. 844, 1770.)

228. UMCO’s longwall mining in the 6E Panel

would have intercepted the shallow groundwater flow

system. (S.T. 804-17, 958; T. 231, 233, 1770; C.S.Ex. 13

(illustration); P.F.Ex. 65; U.S.Ex. AA; U.Ex. 11.)

93a

229. The fracturing of the aquitards would have

compromised the entire perched system, which in

combination with surface fracturing would to a

reasonably degree of scientific certainty have

eliminated all or nearly all of the remaining surface

component of the system; to wit, the springs, seeps,

wetlands, and the 6E Stream itself. In other words,

longwall mining of the 6E Panel would dewater the 6E

Stream. (S.T. 804-818; T. 441-42, 1770; U.Ex. 120.)

230. Instead of flowing outward to create and

support surface water features, the groundwater in the

6E panel would percolate downward after mining. It is

not known and it does not matter exactly where it

would emerge beyond the known fact that it will

emerge too low to contribute to the shallow flow

system. It may or may not infiltrate into the mine

workings. (S.T. 804-817; T. 357, 369-70, 392-93;

C.S.Ex. 13 (illustration); U.S.Ex. AA; U.Ex. 120.)

231. The water that is lost from the shallow

groundwater regime does not disappear; it simply

flows deeper and possibly emerges at some unknown

point downdip or downgradient, in this case

somewhere in the Maple Creek and/or Pigeon Creek

watersheds. (T. 233, 244, 290; U.Ex. 120.)

Subsidence From a Bird’s-Eye View

Temporary Zones

232. It is also possible to conceptualize subsidence

from an aerial perspective. As longwalling progresses

across a panel, the waive of subsidence creates a

94a

temporary tensional zone where cracks are opened up.

(S.T. 923; T. 378, 1204-06, 1752.)

233. As longwalling passes, there is a temporary

compressional zone where the cracks close up. (S.T.

930-35; 1204, 1752.)

234. The temporary deflection or inflection point--

the border between the temporary tensional and

temporary compressional zones--moves through the

panel along with the longwall machine. (T. 1205.)

235. The warping of the ground surface caused by

the subsidence creates a saucer-like depression. (T.

1011-13.)

Permanent Zones

236. After the initial subsidence wave passes, the

panel settles into its final state ground strain

condition. This includes a tension zone, where the

earth is pulled apart, a compression zone where the

earth is pushed together, and a neutral zone where

there is neither long-term compression nor tension.

(S.T. 928; T. 1016-17, 1751-53.)

237. After mining, the middle of the panel, or

saucer, constitutes the permanent neutral zone. The

temporary cracks opened, then closed, then tension is

relieved. The cracks do not go away, but there are

neither long-term compressional nor _ tensional

stresses. (T. 325, 1122, 1752-53.)

238. As one moves outward from the middle of the

panel, mining results in a permanent compression

95a

zone, in which the temporary cracks tend to be forced

together. (T. 325, 1752.)

239. Moving still further outward around the edge

of the saucer, mining creates a permanent tension

zone, where the difference between the subsided area

and the nonsubsided area creates an area where

cracks are pulled apart and tend to remain open for

the long term. (S.T. 924; T. 189, 238, 1128-29, 1753.)

240. The permanent inflection point, or the point of

the “edge effect,” is the border between the permanent

compression and permanent tension zones. (T. 1015,

1740.)

241. The permanent tension zone can affect both

surface and subsurface cracks. (T. 1128-29.)

242. Once formed, subsidence cracks do not

disappear. The difference between the zones is the

extent to which the cracks remain open over the long

term. Open cracks are the most problematic. (T. 325,

1129.)

243. The permanent tension zone is of the most

concern in predicting long-term subsidence effects

because ground forces tend to keep the cracks caused

by subsidence open, which creates a conduit for water

to move downward rather than laterally toward the

surface water features. (S.T. 930-32; T. 189-90, 238,

1021, 1044, 1129, 1199.)

244. Although there are many factors at play, all

other things being equal, surface water features in the

permanent compression zone and neutral zone tend to

96a

suffer less long-term damage than surface water

features located above the permanent tension zone. (T.

189-90, 325, 1043-44.)

245. The more area of a stream or other surface

water feature that overlies the permanent tension

zone, the greater the risk of severe and/or long-term

surface flow loss. (U.S.Ex. AA.)

246. As the height of cover increases, the horizontal

extent of the permanent tensional zone increases. (T.

1134, 1137, 1741-45; P.F.Ex. 62.)

247. In order to calculate the point of the edge

effect, i.e. the aerial extent of the permanent tension

zone, it is critically important to know the vertical

location of the coal seam, factoring in its dip relative to

the topography of the surface in order to calculate

overburden thickness. (T. 1740.)

248. The coal seam on the 6E Panel dips 1.9 percent

from east to west. (T. 731, 1743.)

249. The angle of draw is the angle coming out from

a vertical line extending up toward the surface from

the coal panel. (T. 1132-34, 1739.)

250. The experts in this case assumed that there

would be a 23 degree angle of draw. (T. 1134, 1740.)

251. Using .25h, with “h” being the height of the

overburden, combined with the assumed 23 degree

angle of draw, PennFuture’s expert accounted for

actual site conditions and credibly predicted the scope

97a

of the permanent tension zone that would occur at the

6E Site. (T. 1740-44; P.F.Ex. 62.)

252. As a result of the dipping coal seam and

topography, there is a larger predicted permanent

tensional zone on the west end of the 6E Panel than

east end. (T. 1137, 1743; P.F.Ex. 62.)

253. A substantial percentage of the perched

aquifer, the 6E Stream itself, and the other surface

manifestations of shallow groundwater flow in the 6E

Panel are in the predicted permanent tension zone.

(S.T. 932, 935; T. 238-39, 1045, 1744; P.F.S.Ex. B;

P.F.Ex. 62-63; U.Ex. 14K, 14M.)

254. The percentage of the 6E Stream that is in the

predicted permanent tension zone is higher than the

percentage of the 4E/5E Stream that was in that zone.

(S.T. 932-34.)

255. The fact that a significant portion of the

shallow groundwater and surface water system

overlies the predicted permanent tension zone is a

strong indicator that the adverse subsidence impacts

to that system will be severe and long-term. (T. 189-90,

238.)

256. The permanent tension zones for two adjacent

panels may overlap, such as the zones for the 5E and

6E Panels, which can result in proportionately greater

long-term subsidence damage in that area. (T. 1747-

48.)

257. UMCO’s subsidence expert did not account for

the overlapping permanent tension zones of the 5E

98a

and 6E Panels in rendering his opinions. (T. 1106,

1747-48.)

258. Bruhn’s opinion regarding the aerial extent of

the permanent tension zone was largely based upon

typical, generic average and default values which did

little to account for specific conditions at the 6E site.

(T. 1093-1106, 1134, 1175, 1230-40, 1744-45; P.F.Ex.

62-63.)

259. Whether one considers subsidence effects

vertically through the strata (FOF 201-231) or from a

bird’s-eye view (FOF 232-258), there is a very strong

likelihood that subsidence fractures resulting from

UMCO’s longwall mining of Panel 6E would

completely and permanently eliminate flow in the 6E

shallow groundwater/surface water system including

the 6E Stream.

Other Factors Regarding the Threat to the 6E

Hydrological Regime

260. Hard rock fractures more easily than soft rock.

(T. 185.)

261. Soft rock tends to have smaller cracks

dispersed throughout the unit rather than the larger

open cracks that tend to form in hard rock. (T. 911,

1063.)

262. All other things being equal, fractures in hard

rock are more likely to remain open than fractures in

soft rock. (T. 845-47, 911, 925, 1801.)

99a

263. The more hard rock in the cover, the more

likely that adverse subsidence effects will be severe

and last a long time. (T. 1759; U.S.Ex. AA.)

264. There is a significant amount of hard rock in

the strata below the elevation of the springs (= 1040

msl) and above the coal seam on 6E, which is another

indication that the adverse subsidence effects of

longwall mining in that panel would have been severe

and long term. (S.T. 957; T. 383, 1119-20, 1755-59;

P.F.Ex. 64; U.S.Ex. AA.)

265. There is a greater percentage of hard rock

overlying the 6E Panel than there is in the 5E Panel.

(U.S.Ex. AA.)

266. UMCO’s consultant reported that the

overburden type present in 6E is considered “less than

favorable to reduce the potential for a lowering of the

ground water table that contributes to stream flow

over the 6E panel.” (U.S.Ex. AA.)

267. As a general rule, the larger the watershed,

the more water is available for recharge. At 185 acres,

the 6E watershed is relatively small. (S.T. 810-11; T.

99-100, 108.)

268. As a general rule, the higher the percentage of

a watershed that is mined, the greater the likelihood

that mining will upset the hydrologic balance and

damage the stream in the watershed. (S.T. 810; T. 109;

U.S.Ex. AA.)

269. If the 6E Panel is mined, all but a small

remnant of the 6E watershed will have been

100a

undermined. (S.T. 810-11; T. 109; C.S.Ex. 12; C.Ex.

18.)

270. All other things being equal, a stream that

runs along the length of a longwall panel is more prone

to adverse effects than a stream that crosses

perpendicularly to a panel. (T. 1210-11.)

271. The 4E/5E Stream crossed perpendicularly;

most of the length of the 6E Stream runs parallel to

the 6E Panel. (C.Ex. 12; U.Ex. 14E.)

272. In general, the more times a stream is

undermined, the greater the overall cumulative impact

will be to the stream. (U.S.Ex. AA.) Longwall mining

the 6E panel would have been the third pass because

the stream originates in the 4E panel. (C.S.Ex. 12.)

273. There is an average of approximately 5.75 feet

of soils on the 6E site. (T. 1051, 1096; U.Ex. 14T.)

274. Mine subsidence is not expected to change the

characteristics of the soil. (T. 891, 1164-65.)

275. There are a significant amount of clays in the

soils on the 6E Panel. Clays have relatively low

permeability. (T. 853, 942, 944, 1053; U.Ex. 9, 14B,

14T.)

276. There are also a fair amount of sands and

gravels, which have high permeability. (T. 1227.)

277. Clays would be helpful in resisting initial

surface damage and be conducive to repairing surface

10la

cracks through erosion and deposition. (T. 325-26, 853,

944, 1053-59, 1200.)

278. Some of the baseflow to the 6E Stream flows

through the soils. (T. 1168.)

279. Soils are roughly analogous to rocks in that

there are areas, such as sandy areas, where there is

more flow, and other areas, such as clayey areas,

where there is less water flow. (T. 1168, 1228.)

280. It is the layers or zones of permeable material

in the soil horizons that allow for more baseflow to the

stream. (T. 1228.)

281. The 6E Stream channel and watershed contain

areas of clay, but also sandy areas and rocky areas. (T.

927, 1228.)

282. The 6E Stream’s use as a warm water fishery

is vulnerable to being lost because the stream has

already been stressed by flowing through an open field

that is used for agricultural purposes and the stream

has suffered damage from preexisting construction

activity. (S.T. 648; T. 1503, 1561.)

283. The 6E Stream is more susceptible to damage

and less likely to recover than the 4E/5E Stream. If the

4E/5E Stream eventually recovers, it does not follow

that the 6E Stream, if lost, would also recover because

(a) a higher percentage of the 6E watershed would

have been mined, (b) the 6E Stream is already

stressed, (c) the 6E Stream has less flow, (d) the area

of the 6E Stream has less cover, (e) more of the 6E

Stream is above permanent tensional zones, (f) most of

102a

the 6E Stream runs parallel to the panel, (g) there is

more hard rock in the pertinent lithologies in 6E, and

(h) the 6E watershed would have been mined

repeatedly on separate passes. (T. 236-37; FOF 17-18,

68, 139-40, 211, 219, 256-57, 265, 267-72, 282.)

Recovery of the System

284. There is no dispute among all of the experts

that longwall mining the 6E Panel would have

disrupted flow in the 6E Stream, springs, seeps, and

wetlands. (Compare T. 843-44, 872, 1011, 1768; U.Ex.

120.) The difference in expert opinion is whether and

when the system would have recovered, i.e. when

natural flow would return to levels sufficient to restore

premining values and uses.

235. Although UMCO’s experts opined that the 6E

Stream will eventually recover, they were unwilling to

predict when that recovery would take place. They did

not adopt the conclusion of UMCO’s prior consultant

that recovery would occur in a matter of weeks. (T.

914, 1109.)

286. UMCO’s hydrogeologist conceded that many

variables contribute to how soon a hydrologic regime

will recover, many factors are unknown and

unknowable, and it is impossible to predict when the

6E Stream will recover. (T. 914.)

287. UMCO’s hydrogeologist concedes that it is

possible that the 6E Stream will never recover. (T.

914.)

103a

288. As a general rule, the same factors that affect

whether there will be subsidence damage in the first

place also control whether the subsidence damage will

last a long time. (See, e.g., FOF 263, 264.)

289. Some streams that suffer from the adverse

effects of mine subsidence do recover postmining on

their own. (S.T. 722; T. 85, 302, 874, 990-91, 1647-48;

U.Ex. 196-97.)

290. Streams that recover typically intercept a

larger water table, have larger watersheds, and

overlay mines with deeper cover than 6E. (U.Ex. 120.)

291. Recovery of shallow systems is more likely in

deep cover mines because subsurface fractures will not

propagate upward far enough to damage the critical

aquitards that support the systems. (U.Ex. 120.)

292. The High Quality Mine is unique because

there are no other mines in Pennsylvania where an

operator has attempted to longwall coal using modern

methods with such shallow cover. Therefore, drawing

comparisons with other streams that may have

recovered at other Pennsylvania longwall mines has

little predictive value. (S.T. 681-85.)

293. For example, streams at the Eighty-Four Mine

have recovered, but they were bigger streams and

there was twice the amount of cover. (T. 443.)

294. The Department permitted another operator,

RAG, to mine under a stream that it had already

damaged because that mine had deeper cover, and it

was a bigger, second-order stream than the 6E Stream.

104a

That stream has not recovered. (T. 304, 380-81, 1609-

10, 1830.)

295. When longwalling at a Consol mine created

unanticipated heaving in a stream channel, Consol

was required to show that future panels would not

cause harm. The Consol] mine did not have the unique

problematic characteristics of UMCO’s High Quality

Mine. (T. 1824-27.)

296. UMCO’s hydrogeologist is not aware of any

other case where a stream similar to the 6E Stream

has recovered after having been dewatered by mining.

(T. 914.)

297. Bruhn pointed to two streams in West Virginia

that still flow after being undermined by shallow cover

mines, but the characteristics of those streams make

them very different from the 6E Stream and they have

no predictive value in this case. (T. 1073-84, 1154-64;

C.Ex. 45, 47.)

298. No testifying expert was aware of any

successful operator-assisted stream flow restoration to

date. (T. 302.) Operator efforts to restore lost natural

flow at other mines have not been shown to be

successful. (T. 380-81, 1830.)

299. Kernic has never seen a stream like the 6E

Stream heal once it has been taken by subsidence. ('I’.

1828; U.Ex. 120.)

300. To some extent, some surface cracks can fill in

over time through erosion and deposition of sediment.

(T. 847, 1176-77, 1200.)

105a

301. Erosion and deposition of sediment does little

to help repair subsurface cracks. (T. 911, 1200-01.)

302. Surface cracks may fill up over time.

Subsurface cracks, particularly in a permanent

tensional zone, are less likely to close up over time. In

other words, surface cracks apparent in the 6E Stream

channel may clog with sediment in time, but no such

mechanism operates underground. (T. 912, 1176-77,

1199-1200, 1828-29, 1831.)

303. There is no credible evidence to support

UMCO’s experts’ opinions (T. 845, 872, 1732) that the

cracks in the GE aquitards will “heal.” (T. 911, 1176-

78.)

304. UMCO’s hydrogeologist testified tat he “can’t

really explain” the mechanism for healing. It is “just

his understanding that is what happens with soft

rocks.” (T. 911.)

305. Underground fracturing caused by mine

subsidence and the mine workings themselves create

increased storage space for groundwater. As that

storage space fills up again with groundwater after

mining passes through the area, the deep water table

may tend to rebound. (T. 1066-67.) The rise in water

table does not indicate that the cracks have

disappeared or closed up. (T. 145, 397.)

306. By definition, this recovery effect is less likely

to occur in a formerly perched system that has been

compromised. The cracks cannot fill up with

groundwater because the system is perched in

isolation above the water table. Water will simply

106a

continue to percolate through the damaged aquitard.

(T. 145-47, 1828-29.)

307. The settling and concomitant reduction of void

spaces that occurs after the longwalling passes may

assist somewhat in the recovery of the regional

groundwater table, but it will not contribute materially

to a recovery of a very shallow perched aquifer such as

the 6E system, which is located well above and

separate from the water table. (T. 1114.)

308. Assuming for discussion purposes that there

has been a rise in the regional water table in the area

of 4E/5E system, that observation provides no

meaningful information regarding the future of the

4E/5E Stream. It does not suggest that underground

cracks have “healed” or ever will “heal.” (T. 145-47.) It

could actually indicate that the shallow system has not

recovered and more groundwater is available for deep

recharge. (T. 1780.)

309. The opinions of the Department and

PennFuture’s experts that the 6E hydrologic balance

will not be restored at any time in the foreseeable

future are credible. (FOF 100, 104, 283, 288.)

310. There would be no foreseeable recovery from

the damage to the 6E shallow hydrologic regime

including the stream following longwall mining. The

loss of the stream and its appurtenant surface water

features will be severe and permanent, in the sense

that it will be very long term as measured in human

terms. (S.T. 818, 820; T. 154-55, 178-79, 223, 239-40,

334-35, 381, 396, 1782, 1828; U.Ex. 120.)

107a

Mitigation Plan

311. UMCO has committed to take several

mitigation measures when the predicted damage to the

6E Stream is realized, including such measures as

sealing cracks with bentonite, replacing lost flow in the

stream channel with public water, and supplying a

bond in an amount adequate to cover short-term costs

of mitigation. (S.T. 410, 862, 867; T. 778-80, 1069-70;

U.S.Ex. AA.)

312. The Department believes that UMCO’s

mitigation plan contains the measures that are

currently available for repairing unexpected stream

damage. (S.T. 828-29, 862, 867; T. 778-80, 1662-63,

1811.)

allow the stream to function as a warm water fishery

on at least a short term basis. (T. 1321, 1412-13, 1489-

97, 1505-07.) There is insufficient research or evidence

to know whether it could maintain such a use over the

very long term. (T. 1327-28, 1344-45, 1352, 1489-98,

1505-08.)

314. This is not a case where only temporary and/or

partial city water augmentation would have been

necessary. Permanent and total replacement of

natural flow with city water would have been required

in the 6E Stream. (FOF 310.)

315. UMCO’s proposed mitigation measures would

not restore or repair the damage to the perched

aquifers in the 6E watershed. (S.T. 856, 1783; T. 302,

338.)

108a

316. The mitigation measures proposed by UMCO

would not prevent the damage that wiil occur to the 6E

Stream or hydrologic regime or restore the resource at

any time in the foreseeable future. (T. 1270, 1672,

1783, 1830-31.)

317. Although it is theoretically conceivable that a

damaged aquitard could be repaired in situ, the

witnesses were not aware of it ever having been tried.

UMCO has not proposed to do so as part of its

mitigation plan. (T. 1270, 1783.)

318. UMCO has employed nearly identical

mitigation measures in the 4E/5E watershed and they

have neither prevented the subsidence damage nor

resulted in the restoration of natural conditions in

stream to date. (S.T. 154, 202, 311-13, 697, 849; T.

1411, 1672, 1778.)

319. The Department has never by law, regulation,

policy, or practice allowed permanent or long-term

augmentation with public water or other alternative

sources as a mitigation measure. Augmentation is

typically thought of as a temporary measure to be used

until a stream recovers where it is expected that the

stream will in fact recover naturally. It is also typically

thought of as a way of supplementing, not replacing,

natural flow. (T. 970, 983; U.Ex. 93, 99.)

320. Permanent and total supplantation of all

natural flow in the former stream channel with city

water does not maintain the values and uses of the

stream. (T. 1000, 1342.)

109a

321. It is the Department’s policy that certain

mitigation measures are acceptable temporary tools in

the event of unanticipated impacts to streams. It does

not follow from the requirement to submit a mitigation

plan that a mine can be permitted where, as here, it is

known that there will be a complete and permanent

loss of a stream. (T. 347-48, 966, 998-99, 1006, 1617,

1636-39, 1644, 1820, 1822.)

322. If the Department determines through acid-

base accounting or otherwise that a mine will! cause

acid mine discharges, it will not permit the mine, even

if the operator promises in advance to treat the

discharge. (T. 995-96.)

323. Because the damage to the 6E shallow perched

system with its concomitant loss of surface water

features is likely to be permanent, it is particularly

important to ensure that it does not occur in the first

place. The only practical way to do that at this time is

to ensure that there is adequate cover over the coal

seam to be mined to ensure the long-term integrity of

the perched aquifer upon which the system depends.

(T. 1770, 1783.)

Other Issues

324. Itis the Department’s longstanding policy that

underground mining may cause some pollution and

some disruption of the hydrologic balance so long as

the values and uses of the waters in question are

maintained in the long term. (T. 301, 989, 1003, 1603-

07, 1637-38.)

110a

325. The complete and permanent elimination ofall

surface water flow does not maintain the values and

uses of waters. (T. 1000.)

326. The Department prohibited UMCO from

longwall mining under the 6E Panel, not because of

any personal animosity toward UMCO or its

principals, but solely because it was known in advance

that longwall mining would irreparably destroy the

shallow groundwater and surface hydrologic system in

the watershed. (S.T. 876-888, 983, 987; T. 1592; U.Ex.

80, 87.) UMCO was permitted to and in fact continued

longwall mining in another panel. (U.Ex. 80, 87.)

327. The Department has not treated UMCO any

differently than any other mine where it is shown that

the operator will permanently dewater a hydrologic

system that includes perennial streams. (T. 303, 347-

48, 1820, 1826-27; U.Ex. 181.)

328. The Department has not applied any new

regulation or binding norm in this case that changes

how it regulates mines where it is known in advance

that the mine will permanently dewater perennial

streams. (T. 983, 993-94, 999, 1636, 1644, 1820-22,

1826-27.)

DISCUSSION

As previously mentioned, UMCO has only pursued

three objections to the Department’s order. UMCO’s

objections are as follows:

1. The Department applied the law incorrectly.

Specifically, the Department applied a

llla

standard of review that is unauthorized and

contrary to law when issuing the order and

concluding that the Clean Streams Law

prohibits UMCO’s longwall mining activities

in the 6 East Panel after UMCO adopted

measures to the extent technologically and

economically feasible to maintain the uses of

the 6E Trib pursuant to the Bituminous

Mine Subsidence and Land Conservation

Act, 52 P.S. § 1406.5(e).

The Department acted in a manner contrary

to law in enforcing and _ otherwise

implementing regulatory concepts or

definitions of general applicability without

proper rulemaking or procedures relating to

the implementation of policy. These actions

include but are not limited to, the

Department’s improper application of a

Board decision in its administration and

application of underground mining

regulations and stream protection guidance.

The Department’s action deprives UMCO of

rights guaranteed by the Constitution of the

United States of America and _ the

Commonwealth of Pennsylvania including,

but not limited to, equal protection and due

process rights.

112a

I. UMCO’s First Objection: The Department

Applied the Law Incorrectly Regarding

Subsidence and Stream Damage

A. Description of the Issue

UMCO’s first objection may be broken down into

several subparts:

(1) Didthe Department incorrectly apply the

law in issuing an order to UMCO that

(2) allowed UMCO to room-and-pillar mine

but not longwall mine

(3) one of the panels at UMCO’s multipanel

mine

(4) where longwall mining will eliminate

permanently

(5) all flow

(6) in perennial surface waters

(7) where UMCO commits in advance

(8) to do everything that is technologically

and economically feasible to maintain

uses in the perennial stream in the

watershed?

In this important and evolving area of the law, it is

important to describe what issues are not before us in

this appeal. As to subpart (1), UMCO has limited its

case to a claim that “(t]he Department applied the law

incorrectly (emphasis added).” Although UMCO

originally argued that the Department abused its

discretion, in the interest of streamlining this case for

quick appellate review, UMCO amended its notice of

appeal to delete that objection. Our review, of course,

is limited to the issues raised in the notice of appeal.

1l3a

25 Pa. Code § 1021.51; Robachele, Inc. v. DEP, EHB

Docket No. 2005-091-L (June 14, 2006); Bucks County

Water and Sewer Authority v. DEP, EHB Docket No.

2005-101-K, slip op. at 14-15 (April 17, 2006).

Although we typically interpret notices of appeal very

liberally to include any objection reasonably

encompassed within the language of the notice,

Robachele; Delaware Riverkeeper v. DEP, 2003 EHB

603, 605, UMCO made a deliberate choice to delete its

specific, previously well-pled objection that the

Department abused its discretion. Accordingly, our

review is limited to determining whether the

Department “applied the law incorrectly.”

With regard to subpart (2) of UMCO’s first

objection, the Department’s Order did not prohibit all

mining in Panel 6E. It only prohibited longwall

mining. UMCO is still allowed to mine the panel with

continuous miners (i.e. room-and-pillar mining).

Although UMCO would not have been able to meet

preexisting contractual commitments with that

admittedly less productive method, there is no

question that coal can be mined. This is not a case

' A review for reasonableness adds an extra layer to our review of

Departmental actions. The Department must act in accordance

with the law and it must act reasonably. Barra v. DEP, EHB

Docket No. 2003-038-L, slip op. at 4 (April 24, 2006); see Baehler

v. DEP, 863 A.2d 57, 60 (Pa. Cmwlth. 2004). In other words, the

Department may have the necessary legal authority to act, but its

exercise of that authority in a particular case must still be

reasonable. See Shuey v. DEP, 2005 EHB 657, 709. UMCO did not

ask for this second level of review. Nevertheless, in the interest of

generating a complete record, we hold that the Department acted

reasonably under the facts and circumstances presented here.

ll4a

where the Department has ceased all mining or denied

a permit entirely.

On that note, the Department’s order only related

to one of UMCO’s panels. For example, UMCO had

already longwalled Panels 2E, 3E, 4E and 5E when the

Department issued the Order. The Order did not

prevent UMCO from longwall mining any of the

remaining panels at the site. In fact, UMCO proceeded

to mine Panel 9E after the Order was issued, but quit

due to what it characterized as a combination of

adverse geological conditions and frustration in

dealing with the Department. The point here is that

we are only reviewing one order affecting one panel in

one way.

We have concluded as a matter of fact that the

Department correctly determined that the longwall

mining will permanently dewater the stream.

Therefore, this case is not about a temporary flow loss.

The 6E Stream is perennial. It is perennial under

every conceivable regulatory definition.” Thus, this

appeal does not implicate the Department’s authority

to regulate the adverse effects of subsidence on

intermittent or ephemeral streams. The 6E Stream

flows continuously throughout the year, year in and

* Whether there is any practical difference between the various

definitions is debatable. Perhaps the most straightforward

definition is set forth in Subchapter F (Subsidence Control) of

Chapter 89 (Underground Mining) of Title 25 of the Pennsylvania

Code, 25 Pa. Code § 89.141(bX2)(astream or part of a stream that

flows continuously throughout the calendar year). The 6E Stream

never stops flowing entirely and clearly meets this definition.

115a

year out. Biological evidence supports that finding, but

there is plenty of other evidence, including eyewitness

testimony, to support the characterization of the

stream as perennial even without the biological

evidence.

UMCO states that it has committed in advance to

do everything technologically and economically feasible

to maintain the future designated uses of the 6E

Stream. The key issue here is whether submittal of an

adequate mitigation plan forces or requires the

Department to issue a permit authorizing the

permanent elimination of all natural flow in a

perennial stream. This case is not about preparing for

unanticipated damage. This case is not about what

remedial measures the Department may require or

other actions the Department may take in the event of

an unanticipated stream loss. What standards apply or

what approvals are necessary in such an event are not

implicated in this case. Moreover, this case does not

involve pooling or otherwise changing the exact flow

characteristics of a stream because there will be no

flow here. Finally, this is not an appeal from a

Department action that allews temporary mitigation.

UMCO’s proposed measures will not restore the

stream and they will need to be employed in for the

foreseeable future.

Our short answer to UMCO’s objection is that the

Department applied the law correctly. The

Department had the legal authority to issue the Order.

UMCO proposed to longwall mine too close to the

surface underneath vulnerable surface waters. The 6E

Panel would have been the shallowest longwall mine

in the history of recent coal mining in the state. There

116a

is no question that it would have caused severe,

irreparable damage. The fact that UMCO was willing

to replace all stream flow in perpetuity with ci

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