Following a vote of 32-17 in the Senate earlier this month, the Pennsylvania House of Representatives Committee on Environmental Resources & Energy is considering an amendment to the Bituminous Mine Subsidence and Land Conservation Act of April 27, 1966, P.L. 31, as amended, 52 P.S. Sections 1406.1-1406.21 (BMSLCA or Mine Subsidence Act). The bill, SB 624 sponsored by Sens. Joseph B. Scarnati III and Gene Yaw, was introduced to clarify the interplay between the Mine Subsidence Act and The Clean Streams Law of June 22, 1937, P.L 1987, as amended, 35 P.S. Sections 691.1-691.1001 (Clean Streams Law).

If enacted as currently drafted, under SB 624, “planned subsidence in a predictable and controlled manner, which is not ­predicted to result in the permanent disruption of existing or designated uses of water of the commonwealth” is not to be considered presumptive evidence that a bituminous coal mine has the potential to cause pollution. Subsidence, or the sinking of land, has the potential to affect stream flow and other hydrological properties.

The bill provides, further, that such a ­determination shall apply only if a bituminous coal mine subject to the BMSLCA submits a plan to the Pennsylvania Department of Environmental Protection (DEP) for the “mitigation of predicted subsidence-induced impacts,” and the plan is approved by the DEP.

The BMSLCA and the Clean Streams Law

The Pennsylvania General Assembly ­enacted the BMSLCA, commonly known as Act 54, to “protect the public health and safety by regulating the mining of ­bituminous coal,” and “declare the existence of a public interest in the support of surface structures.” Section 5(e) of the BMSLCA requires coal mine operators applying for a permit to include a plan 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.” A proviso that follows, however, clarifies that an operator's plan may provide for some subsidence so long as it is planned and in a “predictable and controlled manner.”