Archive for the ‘Helpful Tools’ Category

Set Aside Position Paper and Mine Drainage Treatability and Site Selection Guidelines Shaping Future of Addressing Abandoned Mine Drainage in Pennsylvania

Monday, September 22nd, 2008

Since the passage of significant new amendments to the Surface Mining Control and Reclamation Act in December 2006, the Pennsylvania Dept. of Environmental Protection’s (PADEP) office of Mineral Resources Management has been grappling with the provisions within the new law that could have an effect on the future of Abandoned Mine Reclamation (AMR) and the work of the AMR community.  Principle among those changes is the provision that now allows states to choose to set aside up to 30% of their annual grant to put toward Abandoned Mine Drainage (AMD) projects. Previously, states were only allowed to set aside up to 10% of their annual grant for AMD projects.

In response to the increased flexibility afforded by the new law, and in an effort to gain feedback on how to proceed with the new options, particularly the 30% set aside, the PADEP held 10 public roundtables throughout the state in 2007. One of the most commonly mentioned points from the attendees was that the State should take the full 30% set aside to put toward AMD projects.

In July 2008, the PA DEP’s Office of Mineral Resources Management issued a draft Position Paper clarifying the Department’s decision regarding the 30% set aside. While the Department clearly states a desire to take the full 30% set aside, it also recognizes its responsibility to reclaim abandoned priority mine-related land hazards specified in SMCRA. Accordingly, the state’s position is that it “...shall take the maximum 30% abandoned mine drainage set aside at the earliest possible time that provides a balance with the state’s land reclamation responsibilities.”

In addition to that position, a number of other positions of perhaps lesser significance, yet important nevertheless, are developed in the same document.  For instance, DEP’s positron on providing funding for operations and maintenance for AMD treatment systems is espoused there.  DEP has done a nice job of not only articulating its positions, but also providing the background and framework on which it develops those positions. Anyone who has a stake in these matters should indeed become familiar with this document, as it will likely be a cornerstone in DEP’s use of AMD Set-aside Program program as it passes from draft to finalized form.

To read DEP’s complete draft AMD Set-aside Program Position Paper, click here.

Well before the SMCRA public outreach roundtables in 2007, the PA DEP began an initiative to evaluate the performance or success of passive treatment systems built with public funds to examine the effectiveness of various treatment technologies and develop treatability criteria and project selection guidelines. Proposed in draft form is the Mine Drainage Treatability and Site Selection Guidelines, a framework for AMD project selection which takes into account a whole host of considerations in making the ultimate decision of whether or not a specific source of AMD should be funded for remediation. A key component among the considerations is the selection of methodology for treating and/or abating AMD. Whereas in the past decade or so the virtual de facto choice in Pennsylvania has been for passive AMD  treatment, an evaluation mechanism has now been devised and spelled out favoring “proven, reliable, and predictable” treatment approaches.  Almost certainly the choice of some passive treatment methodologies will become more limited to less risky situations in which those methodologies have had generally good track records.

The original draft document was made available to a focus group earlier this year followed by a meeting in State College where the document was discussed and comments were accepted.  A comment period following that meeting provided additional opportunity to provide input to DEP.  Available now is the Draft Guidelines with Integrated Written Public Comments.

We understand DEP will continue to develop these guidelines over the period of many months.  In that we are still in the first of a 5 year ramp-up period before the full thrust of SMCRA funding will fully be felt, we are comfortable that DEP is doing its due diligence in properly developing these guidelines. As with the AMD Set-aside Program Position Paper, when finalized the Mine Drainage Treatability and Site Selection Guidelines  will likely be a cornerstone in DEP’s use of AMD Set-aside Program.

To read DEP’s Draft Mine Drainage Treatability and Project Selection Guidelines, click here.

Posted in AMD Treatment, General, Helpful Tools, Uncategorized | 121 Comments »

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: www.treatminewater.com

Posted in AMD Treatment, AML Fund Reauthorization, General, Helpful Tools, Legislation | 137 Comments »