8. Stakeholder Concerns and Issues

In the eastern coalfields, watershed groups have long addressed abandoned coal mine discharges using Section 319 funds, since MIW in these areas is considered non-point source pollution by USEPA. However, in spite of being able to access and use Section 319 funds to address MIW in the east, the need for funding far outweighs available Section 319 funds.

No mechanism is currently in place to generate funding from active hard rock mining to address abandoned hard rock mine drainage remediation activities (as there is with abandoned coal mine drainage). Mining activities in the East (coal mining) versus the West (hard rock, metal mining) are guided by two separate pieces of legislation. Hard rock mines are covered under the 1872 Mining Law while coal mining activities, both active mining and abandoned mine reclamation, are covered under the Surface Mining Control and Reclamation Act (SMCRA).

Even though abandoned mines, and the desire to clean them up, are shared amongst eastern and western communities, remediation and reclamation activities for each region’s abandoned mine problems proceed very differently.

The issuance of a NPDESNational Pollution Discharge Elimination System permit is required under federal regulation 40 CFRCode of Federal Regulations part 122, but the type of effluent limits that this permit includes are at the discretion of tribal or state agencies or USEPA. In the case of abandoned mine discharges, both in the western metal mining states and in the eastern coalfield states, federal, tribal, and state agencies have not given a single clear message as to whether these projects need permits and, if so, what standards those permits will require. The regulatory point of view often is to protect the water body to the extent possible and to defer permit issuance until construction is completed.

In cases where a volunteer organization attempts to implement an MIW treatment system, an undefined future permit may preclude the entire project. Violation of permit limits can have significant civil or even criminal impacts, while doing nothing has no such consequences. Although passive treatment systems are very effective at significantly reducing pollution and restoring streams, meeting a strict permit is more uncertain. It is often difficult for passive treatment systems to consistently meet stringent pollutant discharge limits. Additionally, the increased cost and personnel demands that could be associated with monitoring and reporting requirements included in NPDESNational Pollution Discharge Elimination System permits may be challenging for many volunteer organizations to meet.

The principle of primary jurisdiction, which applies when a court and an administrative agency (such as a state environmental agency) have concurrent jurisdiction, is the principle that a court will first allow that administrative agency to decide an issue, prior to the court ruling on a matter. The result is that the court, on behalf of a third party, will not compel additional or different action by a responsible entity while that entity is actively working with a state environmental agency to implement a work plan. In practice, this principle can protect a nonprofit that may be voluntarily working with a state agency to address MIW from liability for the discharge; however the protection lasts only until the work plan is complete. At that point, the owner or operator becomes liable under the CWAClean Water Act for the MIW discharge, and could be subject to enforcement action by third parties or the state, federal, or local environmental agency. Proponents of Good Samaritan legislation have stated that an amendment to the CWAClean Water Actis one possible vehicle for Good Samaritan protection. Because of the broad wording of the CWAClean Water Act, complete protection from liability can only occur through additional federal legislation.

For the eastern coalfield watershed groups, the interest in, and need for ‘Federal Good Samaritan’ protection stems from recent court decisions in Federal court in West Virginia. Although those court decisions addressed bond forfeiture sites, not abandoned sites as defined in the Surface Mining Control and Reclamation Act, the wording in those court decisions puts watershed groups operating treatment systems for Abandoned Mine Drainage in danger of being treated as industrial dischargers, having to maintain discharge standards even though they were not the original party responsible for the pollution. The opinion (West Virginia Highlands Conservancy v. Huffman, 4th U.S. Circuit Court of Appeals, No. 09-1474, 8/11/10) stated in part:

“The text of the CWA, as well as the corresponding regulations issued by the Environmental Protection Agency, confirm that the permit requirements apply to anyone who discharges pollutants into the waters of the United States. Under the CWA, it does not matter that a mining company may have created the conditions that call for reclamation. What matters is that an entity, private or public, is currently discharging pollutants into the waters of the United States.”

While the need for Good Samaritan legislation is well recognized, there are a number of opinions as to how broad the liability protections should be and to whom they should apply, in addition to how an operator would qualify for such protection. A lack of consensus on these issues has prevented federal legislation from moving forward. National groups such as Trout Unlimited and regional groups such as the Animas River Stakeholders Group in the west and The Western Pennsylvania Coalition for Abandoned Mine Reclamation in the eastern coalfields continue to work with the USEPA and other interested parties toward a solution.

BCRs, as they relate to water quality in the eastern coalfields/shale gas area, may have a two-fold impact.  First, the technology may help reduce sulfate concentrations in MIW to levels that may foster use by the gas industry, thereby ensuring the continued remediation of MIW throughout watersheds in the eastern coalfields. Secondly, eastern coalfield watershed groups have begun to use BCR-treated MIW to operate micro-hydro generators to produce electricity. As this potential use and the associated technology continue to evolve, many issues need to be addressed. These issues include discharge water quality as it relates to fouling generation equipment and piping and coordination with federal, tribal and state permitting agencies with regard to using MIW to generate electricity.

The historically complex issue of water rights should be considered if water from a BCR or any other treatment system is being considered for use. This is an issue for both east and west as water rights are managed to a great extent under tribal or state law. In the eastern U.S., water rights generally follow the English common law principle of riparian water rights, that those owning land adjacent to water have a right to make reasonable use of that water, with amounts related to the frontage on the water body. In the west, water rights more often derive from the Colorado Doctrine of first use (Schorr 2012). In this appropriation-based system, the right to the water, and thus ownership of an annually determined amount of flow, belongs as property to whoever first made beneficial use of the water body.