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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2008

## Text

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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

v.
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

2a

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Commonwealth’s waters is superseded by regulations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.

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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

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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.

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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.

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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.

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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

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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)

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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

© Under the Clean Streams Law, the Department has legal
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.

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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.

l3a

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.

ny
3

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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,

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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.

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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.

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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

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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)

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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.

i}

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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)

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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).

a

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

v.
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.
v.

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.
v.

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.
v.

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.

il

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

o

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.)

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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

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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.)

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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

8la

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.)

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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

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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.)

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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.)

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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.)

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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.)

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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 general

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0259%3A2. Public record. Not legal advice.