23.1 Preamble

Historically, abandoned mines have posed safety hazards to the public and threats to water quality. Federal and state legislative initiatives such as the Surface Mining Control and Reclamation Act (SMCRA) have made great strides in removing those risks. Modern mining practices restore mined areas to premining conditions and the SMCRA Abandoned Mine Land program has been successful in the remediation of abandoned sites that predate the current laws. The Abandoned Mine Land program was especially innovative, as often a responsible party for an abandoned mine is not financially viable. Currently the reclamation of abandoned mines is hampered more by concerns of liability than by the lack of adequate funding.

23.2 The Abandoned Mine Land Program

Governors strongly support the Abandoned Mine Land (AML) program, which helps to remove the hazards associated with abandoned coal mines, control mine subsidence from abandoned underground coal mines, extinguish mine fires in abandoned underground mines and coal refuse disposal areas, replace public water supplies affected by past coal mining, and treat and abate acid mine drainage. In addition, the AML program helps to restore lands and waters, create high-paying construction jobs, and provide substantial economic stimulus to parts of the country that need it the most.

In 2006, Congress extended the AML program to 2021 and adopted comprehensive reforms to ensure the continued integrity, long-term viability, and overall effectiveness of this successful and worthwhile program. Governors support full funding, appropriations, and implementation of this new law, including the ability of certified states and tribes to address non-coal sites.

23.3 Federal Support of State Regulatory Programs

Under the Surface Mining Control and Reclamation Act (SMCRA), the federal government is mandated to provide up to 50-percent of the necessary funding for the operation of state regulatory programs. While the Office of Surface Mining (OSM) made significant progress in meeting their 50-percent match obligation in fiscal year 2008 with an appropriation of $64.5 million, historically OSM has failed to meet the 50-percent match based on state estimates of needed funding. In fact, from FY 1995 to FY 2007, state grants were virtually flat-funded between $50.5 million and $56.8 million, well below the needed funding. States have been struggling for years to accommodate the insufficient federal funding for their regulatory programs. Some states have demonstrated their commitment to supporting strong coal regulatory programs by making up for the gap in federal funding from additional state funds. If OSM does not continue to build on the fiscal 2008 appropriation, states may be faced with legal challenges regarding the mandatory duties they have agreed to undertake under SMCRA. Ironically, failure to meet those duties could lead to attempts by OSM to take over portions of state programs. Such an outcome is unacceptable to states for three reasons. First, states strongly desire to maintain primary responsibility for regulating mining within their own borders. Second, states can more effectively and economically administer the programs. And third, the root cause of the problem is the federal funding shortfall that would be exacerbated under a federal takeover of state programs. Increased funding to the states with reductions in the federal program is warranted based on the outstanding record of state enforcement of the program under primacy. In addition, states do not want to jeopardize their current ability to receive federal funding to operate their AML program as would occur under an OSM takeover.

Governors urge Congress to provide the necessary federal funding to support state regulatory programs. States stand ready to meet their financial obligations to operate their regulatory programs and expect the federal government to do its share.

23.4 Abandoned Mine Reclamation of Non-Coal Mining Sites

The reclamation of abandoned or inactive non-coal mining sites in states not receiving funds from the Abandoned Mine Reclamation Trust Fund has been seriously hampered by a lack of funding. Cleanup of abandoned or inactive non-coal mining sites in these states is critical to the protection of the environment. Since non-coal producing states cannot, and should not, receive funds from the trust fund, governors support federal legislation that provides alternate mechanisms for reclaiming hardrock mining sites in non-coal producing states.

23.4.1 “Good Samaritan” Permits. Governors believe that Congress should eliminate disincentives under the Clean Water Act to the federal government, states, tribes, local governments, organizations, and private entities to initiate remediation projects to improve the water quality resulting from runoff from inactive or abandoned mining sites for which they have no liability for historic contamination. Legislation should be adopted that would allow such entities to apply to the U.S. Environmental Protection Agency or a delegated state for a “Good Samaritan” permit instead of the typical National Pollution Discharge Elimination System (NPDES) section 402 permit. The permit would be based on a site-specific remediation plan that has the primary purpose to significantly improve the water quality conditions at the site, and should not result in the worsening of water quality conditions, while taking into account the entity’s technical and financial ability. “Good Samaritan” legislation should not relieve the “Good Samaritan” project proponent from all applicable state, local, and federal permitting requirements, other than the Clean Water Act section 402 permitting requirements. However, consideration should be given to exemption from any future liability under the Comprehensive Response, Compensation, and Liability Act (CERCLA), as it has the potential to greatly increase the number of “Good Samaritan” projects in certain states. Further, a Good Samaritan permit should not be required when a certified state with an Office of Surface Mining Approved AML program is conducting the cleanup.

23.4.2 Role of the U.S. Army Corps of Engineers in Cleaning Up Abandoned Non-Coal Mining Sites. The U.S. Army Corps of Engineers can provide valuable services in assisting the states and thefederal government to clean up abandoned, inactive, and post-production non-coal mine sites. Governors support legislation that authorizes the Corps to undertake and fund cleanup activities at such sites. In states where an AML program is authorized under Title IV of SMCRA, funding from the Corps should be administered by the authorized state program. The Corps should consult with state and federal agencies with administrative andprogrammaticjurisdiction.

Time limited (effective Winter Meeting 2009–Winter Meeting 2011).
Adopted Annual Meeting 1998; revised Annual Meeting 2000, Winter Meeting 2001, Winter Meeting 2003, Winter Meeting 2005, Winter Meeting 2007, and Winter Meeting 2009.