Abandoned Mine Posts

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.)

• Click here to see the news release.
• Click here to see a list of materials, including the actual rulemaking document (in both pdf and html formats)

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: www.treatminewater.com

by Bruce Golden, Regional Coordinator and Andy McAllister, Watershed Coordinator

On behalf of the Pennsylvania Abandoned Mine Reclamation Conference Planning Committee, we invite you to attend the 10th PA Abandoned Mine Reclamation Conference to be held at the Ramada Inn and Conference Center in State College August 12 - 14, 2008.

This year, in addition to providing learning, sharing, and networking opportunities for those involved in Abandoned Mine Reclamation work, we’re proud to be doing something special to commemorate our 10th anniversary. We’ve added a new component focusing on Coal Mining Heritage and its preservation. We’ve noticed time and again that many of the same people who are committed to restoring the environment from the legacy problems from old coal mining are equally interested and involved in the history and culture of coal mining, especially as it involves their own communities.

The conference organizing committee, comprised of individuals personally committed to the reclamation of abandoned minelands and water– some professionals, some working at the grassroots level, welcomes seasoned reclamationists, preservationists, and interested newcomers to the 2008 Conference. The committee invites you to explore all of the opportunites afforded by the 2008 Conference including the chance to learn about what others are doing to preserve our Coal Mining Heritage.

To find out more about this year’s conference and to register online, go to the conference website, www.treatminewater.com. The registration process is a bit different than in years past in that you now have a suite of attendance options to choose from, in an a-la-carte manner, to match your individual need and budget.

For those needing financial assistance to attend the Conference, we have limited funding available to help. If you are a watershed group member, representing a community organization, an employee of a non-profit organization or academic institution, or other qualifying designation, you will have the option to apply for financial aid to attend the conference. With only a limited amount of financial aid funds available, the Conference Committee will do its best to ensure as many people as possible are able to obtain the financial assistance they need to attend. To help us with this goal, we only ask that those who are truly in need of financial aid ask for it.

The Ramada Inn and Conference Center in State College has set aside a block of rooms at a special Conference room rate of $81.38/night (with tax) for single or double rooms. This flat room rate is available until July 14, 2008. We suspect that guest rooms will fill up fast, so make your reservations early. Additional lodging and Ramada contact information is available on the Conference website.

Incidentally, for those who are interested in viewing Abandoned Mine Drainage (AMD) and Abandoned Mine Land (AML) sites and can never get enough, there will be an optional bus tour to AMD/AML sites in the State College/Philipsburg area to be held Monday August 11, 2008 at an additional cost. The bus tour will last from approximately Noon until 5:00pm.

We’re still hammering out the final details on speakers, etc. so, check back to the Conference website regularly.

Click here to go to the 2008 Conference website and register online.

Click on the “Play” button on the Player below to see an advertisement for the PA Abandoned Mine Reclamation Conference.

by Andy McAllister, Watershed Coordinator 

The Appalachian Regional Reforestation Initiative, also known as ARRI, is a coalition of citizen groups, the coal industry, and government, dedicated to restoring forests on coal mined lands in the Eastern United States. Recently, The Jennings Environmental Education Center in the Slippery Rock Creek Watershed near Butler, PA hosted a dedication and tree planting ceremony for an ARRI demonstration site located on the grounds of their facility.

This week, WPCAMR’s Video Diaries takes you to the Jennings Environmental Education Center to learn how ARRI is gaining momentum in Pennsylvania.

Click the play button on the player below to watch the video.

by Andy McAllister, Watershed Coordinator

Do you have a stream that you think has improved due to a pollution abatement project? If you do, we need your help. The Pennsylvania Department of Environmental Protection’s Non-point Source Program has enlisted the aid of WPCAMR to help them find those improved streams.

The information you provide will assist PA DEP biologists in their efforts to target specific streams for a biological reassessment. If the stream or a segment of the stream has indeed improved, PA DEP could consider it for removal from the list of impaired waterways in the Commonwealth.

The list of impaired waters (formerly known as the 303(d) list) is now part of what is called the “Integrated List”. Impaired waters are those waterways that are not meeting their “designated use”, in other words, the biological community in those streams is adversely affected by AMD, sediment, or any number of other pollutants.

Designated uses are those uses specified in the state’s water quality standards for each water body or segment whether or not they are being attained. An example of a designated use in Pennsylvania is “CWF”, meaning a Cold Water Fishery, capable of sustaining a healthy cold water biological community (eg. a stream where trout can live and reproduce).

Removal of a stream or stream segment from the impaired waters list is a concrete way of showing that pollution reduction projects are having a positive impact on our streams.

If you think you have a stream or a segment of a stream that was impaired and is now not, we invite you to share what you know by filing out the information form at the WPCAMR “Improved PA Streams” page. By sharing your information, you can help direct state efforts to locate recovered streams.