By Marie Cusick

August 16, 2017 - Two Pennsylvania environmental groups scored a legal victory in an ongoing challenge to the expansion of the Bailey Mine Complex, the largest underground coal mine in the U.S.

The state Environmental Hearing Board (EHB) sided with the Center for Coalfield Justice and the Pennsylvania chapter of the Sierra Club Tuesday, overturning a permit revision granted to coal company Consol by state environmental regulators in 2015.

The groups argued the state Department of Environmental Protection essentially gave Consol a pass to cause extensive damage to Polen Run, a stream flowing into Ryerson Station State Park in Greene County. The EHB agreed, and found it violated the Pennsylvania Clean Streams Law and Article I, Section 27 of the Pennsylvania Constitution, known as the the environmental rights amendment.

“When the Department anticipates that the impacts from longwall mining are going to be so extensive that the only way to “fix” the anticipated damage to the stream is to essentially destroy the existing stream channel and streambanks and rebuild it from scratch, the Department’s decision … is unreasonable and contrary to the law,”Judge Steven Beckman writes. ”Polen Run as it existed prior to Consol’s longwall mining no longer exists.”

A DEP spokesman says the agency is still reviewing the decision.

Tom Schuster, a senior campaign representative for Pennsylvania at the Sierra Club called it a victory for the rule of law.

“The EHB set a precedent today that it will protect streams throughout Southwestern Pennsylvania,” he said in a statement. ”Time and again mining companies have proven that putting a stream back together after breaking it is easier said than done.”

Veronica Coptis, of the Center for Coalfield Justice, says the ruling puts the industry and DEP on notice to do a better job developing mining plans.

“We’re thrilled the EHB agreed with us that it’s illegal for companies to destroy streams,” she says.

The board denied a second Consol permit revision the environmental groups were appealing, noting they had not shown enough evidence that DEP violated the law. A company spokesman says it views the ruling as an affirmation coal can be produced responsibly.

Zach Smith, of CNX Coal Resources, which operates Bailey Mine, questioned why the groups were claiming victory.

“This is welcome news for the 2,000 employees at the Bailey complex, their families, and the many communities that rely on the industry,” Smith writes in an email. “We will continue working with the appropriate state agencies and community partners to secure all necessary future permits, and to ensure that these resources are produced safely and responsibly.”

The parties disagreed as to whether the environmental groups were demanding state regulators apply a “no impact” standard–  preventing all pollution or disruption to waterways.

“A permit, at its most basic, is permission from the state to undertake activities that may impact the environment and cause pollution,” Beckman wrote in an earlier opinion in the case.

The entire issue became more complicated by a new law, approved by state lawmakers earlier this summer, which took aim at the legal argument presented by the environmental groups. Proponents say it was necessary to clarify existing law and protect coal jobs.

Both DEP and the environmental groups argued the new law is not yet enforceable because Pennsylvania still requires approval from the federal Office of Surface Mining. The EHB judges agreed.