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Spotlight- Federal Court Ruling Threatens PA Watershed-Based Abandoned Mine Land Cleanup
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By Amy G. Wolfe, Director, Eastern Abandoned Mine Program, Trout Unlimited On November 8, 2010 the U.S. Court of Appeals for the 4th Circuit upheld the decision by a lower court in WV Highlands Conservancy and WV Rivers Coalition v. Randy C. Huffman, Secretary, West Virginia Department of Environmental Protection that ruled NPDES* permits are required, under the federal Clean Water Act, for remediation projects at abandoned coal mine sites.
While the original suit was brought against the West Virginia Department of Environmental Protection to force compliance with the Clean Water Act for its bond forfeiture cleanup projects, the courts’ rulings have made no distinction between abandoned mine drainage (AMD) that resulted from mining prior to the federal 1977 Surface Mining Control and Reclamation Act (“true” abandoned mine sites where there is no legally responsible party and where most of us focus our cleanup efforts) and AMD that resulted from mining after 1977 (usually referred to as “bond forfeiture sites” for which the state legally assumes responsibility for cleanup using forfeited bond monies posted by the mining companies).
Andy McAllister, Western PA Coalition for Abandoned Mine Reclamation, and Paul Ziemkiewicz, West Virginia Water Research Institute, drafted a nice summary for the Eastern Coal Regional Roundtable of the original lower court’s decision released in January 2009, commonly referred to as the “Keeley Decision.”
The Clean Water Act requires NPDES permits for all dischargers of point sources of pollution, meaning that the discharger or operator of a passive or active treatment system (i.e. entity responsible for the operation of a system) would be required to treat the water to certain water quality standards as specified by the state’s designated use of the receiving water body or stream.
To date, the PA Department of Environmental Protection has not required NPDES permits for AMD treatment to address mine drainage from sites abandoned prior to 1977 because it considers AMD as non-point sources of pollution and maintains that the entities implementing the cleanup are “Good Samaritans” that are voluntarily cleaning up AMD they were not responsible for creating in the first place.
Unfortunately, the U.S. Court of Appeals for the 4th Circuit stated that “the text of the CWA (Clean Water Act), 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.”
Exactly how the U.S. Environmental Protection Agency and the PA DEP will respond to this, as it affects AMD remediation by volunteer groups, remains to be seen.
Two potential solutions that Trout Unlimited and its partners will be pursuing include federal Good Samaritan legislation to limit the liability (under the CWA) for volunteer groups engaged in AMD remediation and a possible “general” NPDES permit specifically for AMD remediation projects.
Amy Wolfe is Director of Trout Unlimited’s Eastern Abandoned Mine Program and she can be contacted at 570-748-4901 or by sending email to: awolfe@tu.org.
*The NPDES permits discussed here should not be confused with NPDES permits for stormwater discharges associated with construction activities, which are required for earth disturbance activities that affect one or more acres.
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11/22/2010 |
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