Category Archive for "Abandoned mines"

We’ve written many times about the Obama administration’s plan to reform the federal Abandoned Mine Lands program so that some states — primarily Wyoming — stop getting tons of coal-tax dollars to spend on things other then cleaning up old, abandoned coal mines (see here and here, just for example). Some folks may remember part of our 2004 series on the AML program that focused on misuse of these funds by Wyoming (subscription required):

In the fall of 1999, University of Wyoming students and faculty moved into a new, $20 million geology building.

Located on the university’s Laramie campus, the 65,500-square-foot facility included new computer equipment, state-of-the-art laboratories and a student lounge.

Wyoming officials paid for most of the building with $17.9 million in federal Abandoned Mine Land money – coal taxes meant to fund reclamation of old coal mines. Federal regulators gave Wyoming the general go-ahead for public facility spending 10 years before. This was the state’s first such project.

Since then, Wyoming has spent more than $90 million in mine reclamation money on public works projects that have little – if anything – to do with coal mining.

Wyoming has diverted AML money to build highways, schools and hospitals, according to federal Office of Surface Mining data and state records.

In Campbell County, Wyoming spent $12 million on an addition at Gillette High School. In Sheridan County, $7.8 million bought a new hospital. The town of Medicine Bow got $560,000 for a new water treatment plant.

Until last month – prompted by questions from The Charleston Gazette – the OSM did not have a complete accounting of how the money was spent.

“The state of Wyoming, quite frankly, was spending the money any way it wanted to,” said Guy Padgett, director of the OSM’s field office in Casper, Wyo.

Now, nearly a decade later, we have this story from a non-profit news organization, WyoFile, reporting:

Since 1977, the state of Wyoming has received (or been promised) $1,051,898,067.60 from the AML fund according to Office of Surface Mining, which operates under the auspices of the Department of the Interior.

While disbursements did go towards the original purpose of the fund – Wyoming has reclaimed more than 1,051 coal and non-coal mine sites – hundreds of millions also got funneled into building water systems in Gillette, clean-air research, a hospital addition in Sheridan, maintaining state highways, and the Wyoming Wildlife and Natural Resource Trust.

The largest single recipient has been the University of Wyoming, which has received more than $200 million in AML-related funding for research in clean coal technology, engineering and over-all energy research. This includes a 2007 $50 million appropriation for building the Michael B. Enzi STEM (science, technology, engineering and mathematics) facility.

A 2011 report from the Office of Surface Mining (OSM) on Wyoming’s AML activity put it plainly. “Wyoming has spent much of its AML funds on non-coal mining related problems.”

According to OSM documents, Wyoming has, thus far, spent only roughly 10 percent of its AML-related distributions, $151.6 million, reclaiming coal mine hazards.

Continue reading…

Big news just in from Richmond, Va., where the 4th U.S. Circuit Court of Appeals has issued a major decision that the West Virginia Department of Environmental Protection is indeed required to obtain permits and set discharge limits for abandoned coal mines under the control of its Special Reclamation Program.

A three-judge panel from the 4th Circuit upheld the previous decision by U.S. District Judge Irene M. Keeley, who in January 2009 ruled in favor of the West Virginia Highlands Conservancy in its suit to try to force reforms of the WVDEP special reclamation system.

In this 17-page decision issued just today, Judge J. Harvie Wilkinson III of the 4th Circuit explains that the Clean Water Act requires “any person” who discharges “any pollutant” into rivers and streams to obtain a permit for that pollution discharge. Wilkinson dismantled a variety of arguments made on WVDEP’s behalf by its outside lawyer, Ben Bailey, including that the agency didn’t create the abandoned mine site in the first place and therefore should not have to obtain a permit with a discharge limit during the reclamation process:

… The statute takes the water’s point of view: Water is indifferent about who initially polluted so long as pollution continues to occur.

Wilkinson also dismissed the arguments made by WVDEP and by the Interstate Mining Compact Commission that even if permits were written for these abandoned mine sites, the discharge limits in them would be impossible to comply with:

These arguments get things backwards. For one thing, these consequences are as of now largely speculative. The sky did not fall when WVDEP had to obtain an NPDES permit for the Alton project site, and for all of WVDEP’s and IMCC’s cataclysmic predictions, we may not assume the sky will fall now. More importantly, we are not in the business of rewriting laws whenever parties allege it is difficult to comply with them.

Exempting the state on those grounds risks sending the wrong message to mining companies: Don’t bother complying with the permits, because the state won’t either.

Moreover, the 4th Circuit concluded:

… These arguments about the heavy burdens imposed by the permit program are hardly novel. Any time Congress imposes a permit scheme, some regulated entities will complain that the permits impose onerous costs and will lead to all manner of hazardous consequences. Here, Congress has determined that a permitting scheme is the crucial instrument for protecting natural resources. It is for Congress to weigh the consequences of compliance with the laws it enacts.

In passing the NPDES scheme, Congress considered the costs and decided that the benefits were worth it. If Congress somehow struck the balance wrong, it is for Congress to correct it.

Along with Keeley’s decision in West Virginia’s Northern District, WVDEP was also facing an order from U.S. District Judge John T. Copenhaver Jr. in Southern West Virginia requiring the state to start writing permits with discharge limits for special reclamation sites.

At the end of its ruling, the 4th Circuit offered WVDEP some advice:

… WVDEP’s state law obligations to take over bond forfeiture sites and engage in reclamation efforts invoke Clean Water Act obligations to obtain NPDES permits. Permit requirements are often, and sometimes understandably, a source of discomfort for those required to obtain them. If so, West Virginia can attempt to ease the burdens it foresees. It can petition Congress or the EPA to create exceptions to the CWA for states that move to ameliorate the problems private companies leave behind. Or WVDEP can address the other side of the equation and increase the funds available for reclamation, either by raising the SRF tax on coal or enlarging the bonds mining companies must post before beginning their work.