Archive for the ‘AML Fund Reauthorization’ Category

As We See It, An Update on the SMCRA Set-Aside in PA

Friday, March 6th, 2009

By Bruce Golden, Regional Coordinator

While the reauthorized federal Surface Mining Control and Reclamation Act (SMCRA) has been law for more than 2 years, so far we’ve not seen a significant increase in the rate of new on-the-ground reclamation projects. That’s mainly because of a five year ramp-up period to full funding that’s built into the legislation. (Current funding levels are only slightly higher than they were prior to the reauthorization.) DEP’s Bureau of Abandoned Mine Reclamation (BAMR) is comprehensively overhauling its Abandoned Mine Reclamation (AMR) program during the ramp-up period, especially as concerns the acid mine drainage (AMD) Set-Aside Program.

By law, most of the SMCRA AMR expenditures are for Priority 1 & 2 health and safety problems, almost all of which are land based issues, and generally don’t include acid mine drainage (AMD).The component of SMCRA most responsible for AMD work is the AMD Set-Aside which allows BAMR to use up to 30% of its annual grant for AMD abatement and remediation projects. (The limit prior to reauthorization was 10%)

BAMR’s current AMD project work focuses almost exclusively on projects they have already made a commitment to. That’s expected to continue for the next couple of years.
BAMR’s stated position is to use as much of the allowed 30% as is practical, while providing a balance with dealing with the traditional Priority 1 & 2 health and safety problems. By inference, we can generally expect BAMR to use something close to the full 30%, but we also expect there will be exceptions. Click here to view PA DEP’s Draft Position paper on the AMD Set-aside Program.

A new SMCRA requirement for AMD work is to “comprehensively restore” the waters in qualified “hydrologic units”. [Both quoted terms are left to BAMR to define.] This implies a statewide shotgun approach to treating AMD discharges is not acceptable. BAMR instead will concentrate on comprehensively cleaning up the hydrologic units in which they choose to work. This further implies only a select number of hydrologic units will be targeted because of funding limitations.

BAMR also intends to use the AMD Set-Aside to fund Operation & Maintenance (O&M) activities for AMD treatment systems. The extent of how much of the Set-Aside will be used for this purpose is still unknown. A tradeoff situation exists between funding O&M and building and operating new AMD treatment facilities.

In choosing a treatment technology for a given discharge, the ability of the treatment system to reliably treat a discharge over the long term has a much higher weight. This implies that passive treatment will continue to be used in situations where it has historically been successful, but de-emphasized otherwise. This suggests a greater reliance on active treatment methodologies in coming years. We may see a greater reliance on in-stream alkaline dosing.

BAMR apparently is interested in engaging local watershed groups and conservation districts in the areas they choose to work. How much depends on the extent which is both practical and allowable. General funding support for these kinds of organizations is a disallowed use of Set-Aside funds.

Actual SMCRA funding for future years is only speculative and based largely on national and state coal production levels. Estimates ramp annual funding from current levels of close $30 million to around $80 million in 2012, at which point the estimate fluctuates around an average in the mid $80 million range. Reiterating, up to 30% of those annual grants may be designated for use in AMD Set-Aside program.

WPCAMR has actively been involved with the activities leading up to reauthorization of SMCRA in late 2006 as well as being involved with shaping the Commonwealth’s revamped AMR program.

Favorable Court Decision, OSM Rulemaking, and DEP Minewater Treatability

Monday, June 23rd, 2008

Appeals Court Makes Decision Favorable To AMR

By Bruce Golden, Regional Coordinator

Proponents of funding for abandoned mine reclamation breathed a sigh of relief last week following a court decision which protected the government’s ability to collect a reclamation fee on exported coal.

A number of coal operators had previously sued the U.S. government to discontinue the collection of the abandoned mine reclamation fee on coal produced in the U.S. then exported. Based on an argument that the fee was unconstitutional as applied to exported coal, the coal operators were successful in a lower court decision that agreed with their argument. The U.S. government appealed the decision to federal appeals court which last week overturned the lower court’s decision, in essence preserving the ability to collect the fee.

The fee itself supports reclamation efforts to fix coal mining problems that were created before the enactment of adequate environmental laws prescribing environmental standards. Currently assessed at 31.5 cents per ton for surface mined coal and 13. 5 cents per ton on deep mined coal, the abandoned mine reclamation fee is distributed to coal mining states to fix health and safety problems on abandoned mine lands and remediate streams and rivers degraded by acid mine drainage. Pennsylvania has the dubious distinction of having far more problems from the days of unregulated coal mining than any other state, with about a quarter of a million acres of abandoned mine lands and over 5,000 miles of polluted streams.

In December 2006, Congress reauthorized the Surface Mining Control and Reclamation Act (SMCRA) to, among other things, continue the collection of the reclamation fee through 2021. Optimistically, as much as $1.4 billion will be returned to Pennsylvania derived from reclamation fees with the express purpose of addressing abandoned mine problems. While significant and as good as Pennsylvania could have reasonably hoped for, this figure falls far short of a daunting estimate of $15 billion needed to fully address the legacy of unregulated coal mining.

Currently something over 4% of the coal mined in the U.S. is exported. Had the court decided in favor of the coal operators, the cessation (and possible refunding) of reclamation fees on exported coal would have eroded already inadequate reclamation funding, thus reducing Pennsylvania’s share of reclamation funding by tens of millions of dollars over the lifetime of the reauthorized SMCRA.

The appellate court’s decision was based solely on the interpretation of the language of the law. In particular, that a reclamation fee is imposed upon “coal produced” in the United States. The court’s decision came down to the meaning of “coal produced” as used in SMCRA. The following is a fairly readable excerpt from the court’s decision.

If “coal produced” refers solely to coal extracted then the disputed portion of the statute does not render the statute unconstitutional under the Export Clause. If, however, “coal produced” is interpreted to include the entire process of extracting and selling coal – if it is a tax on extraction and sale – then, as it applies to sales that occur in the export process, it is an unconstitutional violation of the Export Clause.

…. Where a possible construction of a statute would render the statute unconstitutional, courts must construe the statute “to avoid such problems unless such construction is plainly contrary to the intent of Congress. … This canon of constitutional avoidance is subject only to the qualification that the interpretation that “save a statute from unconstitutionality” must be reasonable-that is, the saving construction must not be “plainly contrary to the intent of Congress.” … “The elementary rule is that every reasonable construction must be resorted to, in order to save the statute from unconstitutionality.

Our interpretation of the interpretation is court was obligated to choose the only alternative that would have preserved the constitutionality of the portion of SMCRA in question, that coal production only meant coal extraction, thus allowing the imposition of a reclamation fee.

Even though the decision was based on “a fine point”, it does represent a victory for abandoned mine reclamation. However, it may not be over yet. This case may include another level of appeal.

DEP Seeks Comments on Mine Drainage Treatability Document

By Andy McAllister, Watershed Coordinator

The PA DEP Bureau of Abandoned Mine Reclamation is seeking public comments on the Draft Mine Drainage Treatabililty and Project Selection Guidelines.

Over a year ago, the DEP and Office of Surface Mining (OSM) began an initiative to evaluate passive treatment systems built with public funds by both government and private entities. As a result of these evaluations, a joint DEP and OSM workgroup was established to develop treatability criteria and project selection guidelines for Title IV funded projects. This document outlines the proposed process by which DEP will prioritize AMD projects to be funed. Once final, this document will serve as the primary method for evaluating all newly proposed mine drainage projects.

On June 10, 2008, a special Focus Group convened in State College to learn more about the draft guidelines and to provide comments and suggestions. The notes for that meeting will be available on the BAMR’s AML Focus Group webpage soon.

The Draft Mine Drainage Treatability and Project Selection Guidelines pdf document and directions for providing written comments can be found online on BAMR’s AML Focus Group webpage. Comments will be received until July 14, 2008.

OSM finally releases rulemaking for amended SMCRA

By Bruce Golden, Regional Coordinator

The Office of Surface Mining, at long last has released rulemaking for amended SMCRA. (Rulemaking is the process of fleshing out a law with official rules and regulations used in the actual practical application of the law.)

Be forewarned, this will not a be quick, easy read. So far, we’ve only given it a cursory look. We will likely have future comments in upcoming issues for some portions. And speaking of comments, OSM will accept formal comments on rulemaking until August 19, 2008. Stay tuned for more.

News of Note

  • The 10th PA Abandoned Mine Reclamation and Coal Mining Heritage Conference will be held August 12-14th at the Ramada Inn and Conference Center in State College, PA. For more information and to register online, go to: