The concept behind draft legislation the West Virginia Joint Standing Energy Committee considered at an interim legislative session meeting this week is simple.
The legal implications are vastly more complicated.
State Department of Environmental Protection General Counsel Jason Wandling presented committee members draft legislation at a meeting Tuesday stating that any party that treats acid mine drainage may derive “commercial benefit” from any elements or other byproducts of the treated drainage.
The idea is to encourage treatment of acid mine drainage, addressing one of West Virginia’s environmental problems while clearing up what party can enjoy the profits of what is increasingly looking like a lucrative endeavor due to acid mine drainage’s high concentration of rare earth elements and critical materials.
“If you treat it, you get something out of it and you can sell it,” Wandling said.
But Robert Akers, chief counsel to the energy committee, warned its members that there is an “enormous, diverse body of ownership” regarding coal mines that will have to be scrutinized to determine who owns the rare earth elements taken from treated acid mine drainage.
“There’s an enormous body of mineral law in West Virginia,” Akers said. “There’s just none of it that directly applies to this particular element.”
Akers and Wandling acknowledged that those challenging the law could argue it violates the Fifth Amendment’s prohibition of taking private property without just compensation.
“These questions are ultimately going to come up,” Akers said. “Somebody’s going to want their royalty. Somebody’s going to say, ‘Is this a taking?’ These questions, you can’t hide from them because they’ve been there for over 200 years in the history of this state and they’re not going to go away.”
The committee’s meeting came two months after West Virginia Water Research Institute Director Paul Ziemkiewicz addressed the state Joint Economic Development Commission, noting that rare earth recovery efforts could be a long-term economic solution for the state. The energy committee also heard from Ziemkiewicz Tuesday.
The institute is assessing the feasibility of scaling up acid mine drainage treatment technology to support a nationwide supply chain of valuable rare earth elements and critical minerals.
Ziemkiewicz advised state lawmakers in September to pass draft legislation to clarify who owns the resources resulting from treated acid mine drainage. Acid mine drainage forms when pyrite is exposed and reacts with water and air to form sulfuric acid and dissolved iron, which can form the orange and red sediments in the bottom of streams.
The institute was awarded $5 million in 2019 by the federal Department of Energy to scale up recovery of rare earth elements from acid mine drainage sludge. Work includes construction of a facility at a new acid mine drainage treatment plant near Mount Storm. The DEP’s Office of Special Reclamation is the plant designer and builder, Rockwell Automation is providing sensor and control technology and TenCate Corporation is engineering materials for rare earth element extraction.
The acid mine drainage treatment plant is under construction and was initially scheduled to begin operations by November and then in May.
But the pandemic delayed delivery of needed materials, and lingering supply chain issues and weather delays have pushed the tentative completion date to May 2022, according to DEP acting spokesman Terry Fletcher.
The facility could treat 1,000 gallons of acid mine drainage daily. Nonvaluable solids removed during the clarification process would be pumped into storage plants, while valuable rare earth elements would be separated for further processing. The treated acid mine drainage then would be directed to the receiving stream.
Rare earth elements are a group of 17 metallic elements whose magnetic, electrochemical and other properties make them key components of cellphones, televisions, computer hard drives and other electronic devices as well as defense applications, including lasers and radar and sonar systems.
Rare earths are relatively abundant in the Earth’s crust, but minable concentrations are less common than for most other mineral commodities, according to the U.S. Geological Survey.
Former President Donald Trump issued an executive order in 2017 defining critical minerals as essential to U.S. economic and national security.
The United States had 1.5 million metric tons of rare earth elements in reserve as of January — 3% of China’s total reserves, according to U.S. Geological Survey data.
Ziemkiewicz told state legislators that the U.S. trying to get ahead in the rare earths market has created an opportunity for West Virginia to supply rare earth elements and critical materials for the rest of the nation.
The water institute is a program of the WVU Energy Institute.
Money to support the strained state Special Reclamation Fund is another potential benefit from rare earth element recovery, Wandling said.
A report released in June by the state Legislative Auditor’s Office Post Audit Division warned state mine cleanup funds are nearing insolvency.