Posted on February 22, 2022 by Robert Uram
As I explained in my blog published on December 10, 2021, The Infrastructure Bill is a Bonanza for Abandoned Coal Mined Lands Reclamation, Section 40701 of Title VII of the Infrastructure Investment and Jobs Act provides $11 billion to States and Tribes to reclaim lands and waters degraded by abandoned coal mines. Since then, the Office of Surface Mining Reclamation and Enforcement has confirmed my view that Section 40701 grants may be used to treat acid mine drainage. The three states most affected by acid mine drainage are Pennsylvania, West Virginia and Ohio. DOI has announced that, for each of the next 15 years, Pennsylvania will receive $244 million, West Virginia will receive $140 million and Ohio will receive $46 million from the Infrastructure Act.
While some acid mine drainage problems can be permanently resolved by removing, neutralizing and reclaiming land with acid-forming materials on the surface, most acid mine drainage treatments, including “passive” treatments, are not self-perpetuating. They require ongoing maintenance and supervision. Left untended, treatment sites will degrade and water quality gains will be lost. Because of the importance of maintenance, an assured source of funding for the life of a treatment project is a key to its success.
Section 402(g)(6)(A) of the Surface Mining Control and Reclamation Act has been the major source of funding for acid mine drainage treatment. It was a workaround to several provisions in SMCRA that barred use of fee-based grant funds for acid mine drainage treatment, including one that limited use of grants to health and safety problems and another that limited expenditures to annual construction reclamation and administrative costs. Section 402(g)(6)(A) (which still remains in effect for the fee-based program) allows States and Tribes to set aside and retain up to 30 percent of their annual grant in an acid mine drainage abatement and treatment fund. OSMRE has made it clear, however, that States and Tribes cannot place Section 40701 grants into the existing acid mine drainage set-aside programs.
The obstacles that led to the enactment of Section 402(g)(6)(A) do not apply to Section 40701 grants. States and Tribes can use Section 40701 grants to treat acid mine drainage. The Infrastructure bill does not limit use of a Section 40701 grant to annual project construction reclamation and administrative costs. Consequently, a State or Tribe can use a Section 40701 grant to fund operation and maintenance of both existing and future projects for the life of a project through financial assurances like a State/Tribal or privately held non-wasting endowment or a trust for the benefit of a specific site or combination of sites. These are mechanisms the Army Corps of Engineers has used to ensure long-term funding of wetlands mitigation. 33 CFR § 332.7(d)(4). Tools like OSMRE’s AMDTreat can be used to forecast and evaluate long-term treatment costs. Site protection measures like conservation easements or covenants that run with the land can and should be put in place to ensure that the funded sites remain available for acid mine drainage treatment.
Using grants in this manner does not run afoul of the “claw back” provision in Section 40701(d)(4)(B), which requires States and Tribe to “return unused” grant funds to the Abandoned Mine Land Reclamation Fund after a specified passage of time. The common meaning of “use” is: “employed in accomplishing something.” Funds allocated for operations and maintenance of a specified acid mine drainage treatment site are clearly being used and will not have to be returned.
Summary and Conclusion
A State or Tribe may use a Section 40701 grant to treat acid mine drainage. While a State or Tribe cannot place Section 40701 funds in a Section 402(g)(6)(A) set-aside fund, it can fund long-term operation and maintenance costs by allocating funds for specific projects. The assurance of long-term funding will help make the future bright for increased success of returning streams polluted by acid mine drainage to healthy, fully functioning streams.