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Stewards of watersheds throughout Appalachia have a lot of cleaning up to do.

First, though, they have a lot of clearing up to do — with potentially billions of dollars on the line.

President Joe Biden signed into law a bipartisan infrastructure bill earlier this month that provides $11.29 billion for abandoned mine land and water cleanup projects.

One of the feds’ goals for the investment in cleanup funding over 15 years in West Virginia and 24 other states is addressing acid mine drainage.

“These funds support vitally needed jobs for coal communities by funding projects that close dangerous mine shafts, reclaim unstable slopes, improve water quality by treating acid mine drainage, and restore water supplies damaged by mining,” the U.S. Department of the Interior said in a news release on Nov. 9, four days after Congress passed the bill.

But perceived limits in the legislation on states’ ability to restore streams toxified by acid mine drainage have worried abandoned mine cleanup advocates who see the new law as a missed opportunity to address devastating sources of environmental destruction.

Friends of the Cheat, a Kingwood-based nonprofit working to restore the Cheat River watershed, criticized the legislation in a September email to the group’s followers.

“[N]ew regulations concerning the distribution of funding leaves many streams and rivers, including the Cheat, in the lurch,” the group warned.

In addition to decrying the legislation’s 20% reduction of fees levied on coal companies that fund the reclamation program for abandoned mine lands, the group lamented that the legislation wouldn’t allow spending on some of the watershed’s most problematic acid mine drainage sites.

The group interpreted the bill as prohibiting funding to be spent on a key category of acid mine drainage sites and not allowing states to put funds in set-aside accounts that cover acid mine drainage treatment costs.

So did Paul Johansen, chief of the West Virginia Division of Natural Resources’ Wildlife Resources Division, and state fish and wildlife agency heads in Kentucky, Ohio, Pennsylvania, Tennessee and Alabama, who urged chairmen of the U.S. House of Representatives Budget and Natural Resources committees to lift the apparent restrictions in an Aug. 26 letter.

The bill had already passed the Senate earlier that month.

The state fish and wildlife agency heads urged House leadership to give states greater flexibility to “treat polluted water according to the highest needs of our people, fish, and wildlife.”

States and tribes rank abandoned mine land problems on a priority scale of 1 to 3 as defined by federal law. Mine pollution problems ranked 1 and 2 are addressed first.

Many mine cleanup advocates have concluded the infrastructure law would not allow funding to be used for addressing acid mine drainage in problem areas not adjacent to Priority 1 and 2 sites, pointing to language in the Surface Mining Control and Reclamation Act of 1977 cited in the new law’s text.

“The current limitations requiring funds be used only for treatment facilities adjacent to priority 1 and priority 2 abandoned mine land do not account for treating [abandoned mine drainage] where resource managers determine pollution is having the greatest negative consequences or where the AMD causes severe impacts to economically and environmentally disadvantaged communities,” the state fish and wildlife agency heads wrote to House committee chairmen in their August letter.

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 Lick Run Portal abandoned mine site has been the lower Cheat watershed’s largest source of acidity for many years.

But it’s only a Priority 3 site, Friends of the Cheat lamented.

“[T]his AMD source, and so many others like it, will be left without a clear path forward for remediation,” the group warned in its September email.

Unfunded reclamation costs for just Priority 3 sites in the Cheat River watershed total $54.1 million, according to the Abandoned Mine Land Inventory System maintained by the federal Office of Surface Mining Reclamation and Enforcement.

Reclamation costs still unfunded for Priority 3 sites in West Virginia total $572.8 million — more than eight times as much as the same costs for Priority 1 sites statewide.

Nationwide, unfunded costs of reclamation for Priority 3 sites amount to $2.87 billion.

Tom Clarke, executive director of the Interstate Mining Compact Commission, a Herndon, Virginia-based state membership organization that represents states’ interests on mining issues, has interpreted the law as less restrictive. He wants the feds to do the same.

“I believe Congress intended to allow new funds it provided in the infrastructure bill to be used for Priorities 1, 2 and 3, water supply replacement and [abandoned mine land] emergencies,” Clarke said in an email. “To give full effect to the intent to authorize Priority 3 work, I am hopeful the law will be interpreted to allow a portion of these funds to be dedicated to the costs of long term operation and maintenance of AMD treatment systems.”

But Joe Pizarchik, who served as director of the federal Office of Surface Mining Reclamation and Enforcement from 2009 to 2017, doesn’t think the text of the law supports Clarke’s argument.

“I agree the interpretation Executive Director Clarke offers … would be better for the states and would produce a better result for the environment and the community,” Pizarchik said in an email. “I do not agree that Mr. Clarke’s interpretation is likely to prevail.”

Office of Surface Mining Reclamation and Enforcement spokesman Francis Piccoli said Tuesday that the agency’s solicitors are “engaged in a thorough legal review of the law” and declined further comment until the legal review is complete.

What’s at stake, watershed protectors say, isn’t just the environmental health of rivers and streams but hundreds of millions of dollars in potential revenue from fishing, boating, kayaking and other recreational activities lost due to a lack of clean water driven by funding restrictions — even after a $11.29 billion investment from the feds.

“Flexibility for states to use funds based on necessity of the water source, downstream effects on the environment and disadvantaged communities, or feasibility of the project,“ Johansen and other fish and wildlife agency heads wrote in their August letter to House committee chairmen, “ … would greatly increase the return on investment.”

Priorities not straight

The new law, the Infrastructure Investment and Jobs Act, says federal funds can be used only for activities described in two subsections of the Surface Mining Control and Reclamation Act, one of which authorizes spending on emergency reclamation.

The other subsection outlines priorities 1, 2 and 3 and specifies that areas adjacent to sites that have been or will be remediated under the former two priority levels outrank Priority 3 in importance.

Clarke contends that Priority 3 acid mine drainage work is authorized by that subsection’s definition of Priority 3: “restoration of land and water resources and the environment previously degraded by adverse effects of coal mining practices including measures for the conservation and development of soil, water, woodland, fish and wildlife, recreation resources, and agricultural productivity.”

“The most basic objective of Priority 3 cannot be achieved,” Clarke said, if there is no authority to spend Abandoned Mine Land program dollars on operation and maintenance of acid mine drainage treatment facilities.

“Because [operation and maintenance] costs are a fundamental part of achieving the purpose of Priority 3 AML work, we believe they are necessarily authorized by the infrastructure bill as part of the authority it confers to do Priority 3 work,” Clarke added.

But Pizarchik maintains that a Priority 1 or 2 project adjacency requirement for acid mine drainage treatment persists.

Pizarchik also points out the Infrastructure Investment and Jobs Act makes no direct mention of a provision of the Surface Mining Control and Reclamation Act that authorizes states to set aside up to 30% of Abandoned Mine Land program funding for acid mine drainage abatement and treatment.

“The Senate chose not to authorize treasury funds to be placed in state set-aside accounts to pay for future [acid mine drainage operational and maintenance] treatment costs,” Pizarchik said.

To support his argument, Pizarchik points to the failure of an amendment to the legislation proposed by Sen. Bob Casey, D-Pa., that would have explicitly banned restrictions on acid mine drainage treatment.

Casey’s amendment would have allowed Abandoned Mine Land program funds to be used for acid mine drainage abatement and treatment, barred Priority 1 or 2 adjacency requirements for acid mine drainage projects.

The amendment also would have authorized acid mine drainage projects to be done through state and tribe acid mine drainage programs beyond drainage areas where water quality has been “significantly affected by acid mine drainage from coal mining practices in a manner that adversely impacts biological resources,” per the Surface Mining Control and Reclamation Act.

Casey’s office hoped to include the amendment in a package of amendments to the legislation that never materialized, said Natalie Adams, Casey’s press secretary.

“Senator Casey is very concerned that this language was not included in the bill and he is looking for other opportunities to advance the amendment in the future,” Adams said in an email.

“This legislative history is available for lawyers and courts to interpret the infrastructure bill,” Pizarchik said. “ … While I would like to believe Executive Director Clarke’s interpretation would be adopted, my years of government experience leads me to conclude that is highly unlikely.”

Recreation and rare earth potential

Friends of the Cheat was formed in 1994 to restore a watershed degraded by decades of acid mine drainage pollution. Since then, the group and its partners have implemented acid mine drainage treatment systems on private and abandoned mine lands.

A blowout at the former T&T Mine Complex sent large amounts of highly acidic water into the confluence of Muddy Creek and the Cheat River in March, unsettling Friends of the Cheat.

The state Department of Environmental Protection said after the incident it could not determine a cause but noted the possibilities of stagnant pools of water within the mine getting flushed out due to heavy rainfalls and periodic roof collapses within the mine displacing large volumes of water at one time. The department couldn’t confirm the theory because it couldn’t enter the mine.

What has concerned Friends of the Cheat is the knowledge that heavier rains are sure to test the acid mine drainage treatment system in the future, especially as precipitation amounts escalate due to worsening climate change.

Friends of Deckers Creek, a Morgantown-based nonprofit watershed restoration group, welcomed a partnership announced in May between Northeast Natural Energy, the West Virginia Department of Environmental Protection and the U.S. Department of Agriculture’s Natural Resources Conservation Service to operate and maintain a treatment system designed to treat acid mine drainage in the lower portion of Deckers Creek.

The system will treat acid mine drainage originating from an underground coal mine, the Richard Mine, which closed in 1952 but has persisted in degrading the creek’s lower stretch since then.

The facility has been slated to start treatment next year.

Northeast Natural Energy, a Charleston-headquartered oil and gas exploration company, will be covering treatment system operating and maintenance costs totaling about $200,000 a year, with abandoned mine land reclamation funding going toward other project costs.

Friends of Deckers Creek Executive Director Brian Hurley said that once the new treatment system goes online, it will bridge a gap between a healthy fish population in the Monongahela River and a healthy fish population in the middle stretch of Deckers Creek that could allow people to fish right outside downtown Morgantown.

The scrutiny over the new law’s acid mine drainage governance comes as West Virginia lawmakers eye treating the drainage as a potential economic boon for the state.

The West Virginia Water Research 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.

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 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 earth elements are relatively abundant in the Earth’s crust, but mineable 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.

With the U.S. trying to get ahead in the rare earths market, Water Research Institute Director Paul Ziemkiewicz told the state Joint Economic Development Commission during an interim legislative session in September that he has sensed an opportunity for West Virginia.

“We certainly want to have the central concentrate for the whole United States and hopefully central Canada coming [to West Virginia], and then this would be our major supply of rare earth elements and critical minerals for the United States,” Ziemkiewicz said. “It may sound grandiose, but what the heck? Think big, realize big.”

Ziemkiewicz has recommended that state lawmakers embrace legislation the Water Research Institute and the Department of Environmental Protection have worked on together, stating that whomever treats acid mine drainage also owns any valuable elements coming from the drainage.

But lingering restrictions on acid mine drainage treatment funding could hinder state and watershed group efforts toward sorely needed economic and environmental relief.

Ziemkiewicz has also said rare earth element recovery could supply financial support for the state’s strained Special Reclamation Fund.

A report released in June by the state Legislative Auditor’s Office Post Audit Division warned state mine cleanup funds are nearing insolvency.

West Virginia lawmakers and environmental regulators risk letting the state’s mining reclamation program slip into insolvency through gaping holes in statutory and permitting oversight, the report found.

The Department of Environmental Protection has failed to comply with state and federal law in its reclamation program oversight, the report said, resulting in missed opportunities to financially shore up a program that will need hundreds of millions of dollars to reclaim permit sites under federal regulations.

What comes next

Environmental regulators in West Virginia and other states with long mining legacies have to be ready for an influx of federal dollars without precedent.

West Virginia will receive $2.18 billion from the new law over 15 years, more than any state except Pennsylvania, according to an estimate from the Appalachian Citizens’ Law Center, a Kentucky-based nonprofit law firm that represents coal miners on black lung and mine safety issues.

Pizarchik and other mine cleanup advocates have said states should begin planning now to hire staff that they need to make the most of the federal investment and design projects now so they can solicit project bids sooner.

Fletcher said the Department of Environmental Protection is identifying and attempting to fill all vacant positions and currently evaluating the needs for additional staff to help manage the influx of funding.

As of Nov. 1, the DEP’s Division of Land Restoration, which houses the agency’s offices of Abandoned Mine Lands, Special Reclamation, and Environmental Remediation, had 134 filled positions and 18 vacancies, Fletcher said. Nearly one in every five positions in the Abandoned Mine Lands office are vacant, with 52 filled positions and 12 vacancies.

The agency is exploring options to expand use of the private sector in reclamation efforts, Fletcher said.

The DEP, Fletcher added, is waiting for guidance on if or how the funding will differ from already established federal Abandoned Mine Land funding programs.

Meanwhile, Pizarchik and other mine cleanup proponents hoping for new, explicitly expansive legislation on acid mine drainage treatment are in a wait-and-see mode of their own.

“I do not know what Congress or OSMRE will or will not do,” Pizarchik said.

Mike Tony covers energy and the environment. He can be reached at 304-348-1236 or mtony@hdmediallc.com. Follow @Mike__Tony on Twitter.

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