Publications

Recent Efforts by OSM and BLM to Regulate ARD: A Wrong-Headed Approach,

1996

Author: Edward M. Green.

In 1994 both OSM and BLM developed draft policies aimed at regulating ARD in connection with mining operations under their respective jurisdictions. These draft acid drainage policies were flawed in major respects. For example, from a procedural perspective, OSM and BLM to have attempted to engage in "nonrule rulemaking," a practice which is all too common in the activities of federal agencies these days. Although the two agencies described their drafts as policies, in reality they contained mandatory requirements and binding proscriptions which would have been imposed on mining operations without ever giving the industry any opportunity for formal public comment.

In addition to procedural flaws, even worse, the drafts produced by the two agencies went far beyond the authority granted to them by their enabling statutes, especially with regard to the attempts of OSM and BLM to discredit, if not outlaw entirely, long-term treatment techniques used to control ARD.

Fortunately, mining industry protests against these wrong-headed approaches (including the vigilant efforts of some C&M clients, whom we assisted) caused OSM and BLM to put their draft policies on hold. And, on a positive note, the two agencies are currently engaged in a dialogue with representatives of the National Mining Association, the Interstate Mining Compact Commission, EPA and the National Mine Land Reclamation Center in an Acid Drainage Technology Initiative ("ADTI") in an effort to resolve ARD problems (especially long-term treatment issues) by developing a problem-solving consensus among the agencies, the industry, and the states, including a strengthened technology base in the areas of ARD prediction, avoidance, and reclamation.

OSM's Draft Policy Statement on Avoiding and Controlling Acid Mine Drainage

The flawed core of OSM's 1994 draft policy on so-called Acid Mine Drainage ("AMD") is a provision stating that:

A permit must be denied unless the operator demonstrates through scientific mine drainage predictions, that the mining and reclamation plan will achieve the standard of 'avoiding' acid mine drainage on a permanent basis. Although SMCRA specifies that treatment of drainage is a measure to avoid AMD, permits containing a perpetual treatment plan for anticipated discharges rather than a plan for elimination of such discharges must not be approved because of the risks and uncertainties associated with long-term treatment. Plans for perpetual treatment contained in a permit application inherently do not provide the requisite assurance that AMD will be avoided to allow permit approval.
(Emphasis added.)

Thus, rather than address the adverse effects of acid drainage, the draft OSM policy affirmatively rejected the use of treatment as a means of "avoiding" ARD in total. This approach contravenes § 515(b)(10) of SMCRA, which sets performance standards that require mine operators to:

Minimize the disturbances to the prevailing hydrologic balance at the mine-site and at associated offsite areas and to the quality and quantity of water in surface and ground water systems both during and after surface coal mining operations and during reclamation by -

(A) avoiding acid or other toxic mine drainage by such measures as, but not limited to --

(i) preventing or removing water from contact with toxic-producing deposits;

(ii) treating drainage to reduce toxic content which adversely affects downstream water upon being released to water courses;

(iii) casing, sealing, or otherwise managing bore holes, shafts, and wells and keep acid or other toxic drainage from entering ground and surface waters.

(Emphasis added.)

Accordingly, the plain language of SMCRA expressly authorizes the use of "treatment" to "reduce" the "toxic content" of ARD from the mine site. Moreover, this entire avoidance standard is subsumed within the broader standard which requires only that mine operators "minimize the disturbances to the prevailing hydrologic balance . . . ," not that they eliminate ARD altogether. Thus, the absolute prohibition, in OSM's draft policy statement, of coal mining operations which will generate any ARD even if treatment is fully employed, is contrary to SMCRA.

The Draft BLM ARD Policy

While not quite so draconian in its terms and tone as OSM's draft policy, BLM's draft policy also restricts long-term treatment of ARD as an acceptable method of reclamation. For example, the BLM draft specifies that ". . . ARD prediction must be fully integrated . . . throughout the project life" of a mining operation. The draft policy goes on to state that "prevention or control of the oxidation of sulfide minerals" is best. Next best is "controlling the migration of any potential ARD." And only as "a last resort, [should] treatment [be utilized] until applicable standards have been met. Treatment of ARD effluent is often a long-term commitment and should be considered the option of last resort." Thus, the draft BLM policy also is biased against long-term treatment. "Operations proposing long-term treatment and release are not encouraged." They are an "unappealing option."

As for BLM's statutory authority, although the provisions of the Federal Land Policy and Management Act of 1976 and the Mining Law of 1872 are infinitely more flexible and general than the detailed provisions of SMCRA, nevertheless neither of the BLM statutes nor the implementing surface management regulations contained in Subpart 3809 of 43 C.F.R. Part 3800 authorize the discriminatory, if not prohibitory, provisions of the BLM draft policy.

Next Steps

As mentioned above, although OSM and BLM appear to have put their draft ARD policies on the back burner in favor of a results-oriented dialogue with the mining industry, the states, EPA, and others, nevertheless the threat of more stringent, prohibitory regulation remains a sword hanging over the heads of mining companies.

Notably, the dialogue does not include representatives of the environmentalist or citizens group communities. From the perspective of those interest groups, they may well regard the ongoing discussions as closed-door deal making. Furthermore, in the context of the OSM program, it is important to note that a large percentage of ARD related to coal mining is associated with abandoned mine lands upon which mining ceased before SMCRA's enactment in 1977. Since SMCRA's enactment, the coal mining industry has contributed approximately $4 billion to the Abandoned Mine Reclamation Fund. The government has elected to spend most of the fund on "public health and safety" projects unrelated to remediation of ARD, and much of it has been wasted on excessive administrative costs. Moreover, as of November 30, 1995, almost $1.8 billion of funds collected from the mining industry under SMCRA remain unappropriated in the Federal Treasury. A far more effective approach for the federal government to utilize in fighting ARD problems would be to refocus the abandoned mine reclamation program to address reclamation of abandoned mine ARD and release the substantial previously collected industry funds for efficient achievement of this task. Indeed, it is blatantly unfair for mining companies who own abandoned mine sites with ARD problems to be exposed to the risk of enforcement actions under the Clean Water Act and other laws while the government fails to expend funds collected under SMCRA for the purpose of abandoned mined land reclamation.

Furthermore, while responsible mining companies acknowledge that ARD is a problem, it is important to keep in mind that the problem is not only associated with mining operations. ARD can occur anywhere sulfide-containing minerals are exposed to oxygen and water. This is evident, for example, on road cuts, hillsides, or any area where geologic strata are exposed. Thus, efforts to solve ARD problems should be addressed in a coordinated fashion so that agencies at the federal level are communicating with the mining states in both the eastern and western United States, as well as government agencies around the world. Perhaps ADTI could be expanded to accommodate this goal.

Finally, regardless of the outcome of ADTI, should BLM or OSM conclude that further regulations to control ARD are necessary, such regulations must be developed in full compliance with the provisions and protections of the Administrative Procedure Act. The absence of notice and comment rulemaking (in favor of rulemaking by policy along the lines of the OSM and BLM drafts) not only denies the mining industry and other members of the interested public the opportunity to comment, but also denies OSM and BLM the value of any ideas, facts, and arguments that the industry and public may have. In addition, any new rules developed by BLM and OSM must be in accord with the authority granted each agency authorized under its enabling legislation.

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Edward M. Green
Senior Counsel – Washington, D.C.
Phone: +1 202.624.2922
Email: egreen@crowell.com