WATER POLLUTION CONTROL RESEARCH SERIES
14010 FZU 03'72
Legal Problems Of
Coal Mine Reclamation
X
U.S. ENVIRONMENTAL PROTECTION AGENCY
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WATER POLLUTION CONTROL RESEARCH SERIES
The Water Pollution Control Research Series describes
the results and progress in the control and abatement
of pollution in our Nation's waters. They provide a
central source of information on the research, develop-
ment, and demonstration activities in the Environmental
Protection Agency, through inhouse research and grants
and contracts with Federal, State, and local agencies,
research institutions, and industrial organizations.
Inquiries pertaining to Water Pollution Control Research
Reports should be directed to the Chief, Publications
Branch, Research Information Division, Research and
Monitoring, Environmental Protection Agency, Washington,
D. C. 20460.
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LEGAL PROBLEMS OF COAL MINE RECLAMATION
A Study in Maryland, Ohio, Pennsylvania and West Virginia
by
THE UNIVERSITY OF MARYLAND SCHOOL OF LAW
Project Directors
Everett F. Goldberg
Associate Professor
Garrett Power
Professor
for
THE ENVIRONMENTAL PROTECTION AGENCY
Grant #14010 FZU
March 1972
For sale by the Superintendent of Documents, U.S. Government Printing Office, Washington, D.C., 20402 - Price *-'
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EPA Review Notice
This report has been reviewed "by the Environmental Protection
Agency and approved for publication. Approval does not
signify that the contents necessarily reflect the views and
policies of the Environmental Protection Agency nor does
mention of trade names or commercial products constitute
endorsement or recommendation for use.
11
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ABSTRACT
Coal mining produces a variety of environmental
problems -- acid drainage, sedimentation, surface subsi-
dence and surface scars. This study reviews the response
of legal institutions to these problems in Maryland, Ohio,
Pennsylvania and West Virginia. Technological and econ-
omic concerns are also taken into account.
The study discusses the antecedents of today's
Appalachian coal industry and the environmental problems
it has created. It examines the way in which the property
system allocates rights in coal and coal lands, the
efficacy of litigation and present laws and regulations
for preventing environmental damage, and constitutional
limitations on the ability of states to effectively
respond to the problems. A case study of the economics
of the Maryland coal industry is also presented. Model
legislation giving the states the necessary powers to
respond to environmental problems, is proposed. The
statute meets the mandate of section 14(c)(2) of the
Water Quality Improvement Act of 1970 which provides
as a prerequisite to federal participation in reclama-
tion projects "that the state or interstate agency shall
provide legal and practical protection to the project
area to insure against any activities which will cause
future acid or mine water pollution."
This report was submitted in fulfillment of
Grant No. 14010 FZU from the Environmental Protection
Agency to the University of Maryland.
111
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CONTENTS
CONCLUSIONS ix
RECOMMENDATIONS xiii
INTRODUCTION 1
I. A HISTORY OF APPALACHIAN COAL MINES 3
II. SIDE EFFECTS OF COAL MINING 19
A. Methods of Mining Coal 20
B. Acid Mine Drainage 27
1. Cause and Effect 27
2. Remedies 31
a. Treatment 32
b. Abatement at the Source 32
c. Deep Well Disposal 36
d. Dilution 36
e. A Note on Costs 37
C. Erosion, Landslides and Sediment 38
1. Cause and Effect 38
2. Remedies 39
D. Other Surface Mining Side Effects 42
E. Subsidence 46
1. Cause and Effect 46
2. Control 47
F. Fires 49
1. Cause and Effect 49
2. Control 50
G. Some Common Factors 51
III. COAL RIGHTS AND THE PROPERTY SYSTEM 53
A. Rights in Coal 53
B. Survey of Ownership Patterns 57
C. Requirements of Owner's Consent
for Governmental Activities 59
IV. COMMON LAW RESPONSES TO COAL MINE
SIDE EFFECTS 63
A. Water Quality 63
B. Land Use 67
1. Deed Interpretation 67
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2. Common Law Doctrine 74
C. Allocation of Responsibility 77
D. Evaluation 81
V. STATUTORY RESPONSES TO COAL MINE SIDE EFFECTS 83
A. Water Quality 83
B. Surface Mining 90
C. Sealing Requirements 99
D. Subsidence 101
E. Public Works Projects 103
F. Miscellaneous 103
1. Soil Conservation Districts 104
2, Local Controls 104
3. Interstate Compacts f 105
VI. CONSTITUTIONAL LIMITATIONS ON STATE ACTION 107
A. Prohibitions of Side Effects 108
1. Prohibition of Discharge of
Mine Waters into Receiving Waters 109
2. Prohibition of Strip Mining 110
B. Requirement of Operator Investment 113
C. Government Investment 116
1. Public Use 119
2. Conferring Betterments 129
VII. COAL MINING IN MARYLAND: AN ECONOMIC
CASE STUDY 133
A. Introduction 133
B. Ambit of the Study 134
C. Economic Terminology 135
D. Overview 137
E. Industry Characteristics 139
F. Internalizing External Diseconomies 148
1. Diseconomies 148
2. Legislation and Costs Imposed 148
3. Assessment 155
G. Evaluation 157
VIII. MODEL STATE MINING AND ENVIRONMENTAL
QUALITY ACT 159
Introduction 159
Summary of Contents 161
CREDITS AND ACKNOWLEDGEMENTS 207
REFERENCES 209
GLOSSARY OF TERMS 235
VI
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LIST OF TABLES
1. Total Production Bituminous Coal
and Pennsylvania Anthracite 25
2. Methods of Production as a Percentage
of Total Production of Bituminous Coal 26
3. Acres Disturbed by Surface Mining by
Commodity, as Per Cent of Total (1965) 52
4. Water Quality Regulation 91
5. Surface Mining Regulation 95
6. Price, Quantity and Revenue of Maryland
Coal Industry: 1965-1970 143
7. Operating Costs of Maryland Coal
Industry: 1965-1970 145
8. Profit and Return of Maryland Coal
Industry: 1965-1970 147
9. Estimated Reclamation Costs to Maryland
Coal Industry: 1967-1970 152
10. Quantity, Price, Revenue, Costs, Profit and
Return of Maryland Coal Industry: 1967-1970 158
VI1
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CONCLUSIONS
1. Coal mining can produce a variety of harmful
environmental side effects. Among these are stream
degradation by acid drainage and sedimentation, land-
slides, erosion, surface scars, subsidence and fires.
The existence and gravity of these harms depends on
such factors as the type of mining done, the nature
of the surrounding strata, topography and climate.
Unlike most industrial side effects, mining's dis-
economies continue after the operation terminates
unless adequate abatement or reclamation measures
are performed. Due to insufficient legal controls,
such measures have not been performed in most opera-
tions in the past, and a significant portion of
today's mining diseconomies originates in inactive
mines.
2. Minimization of side effects both during and
after the mining operation is greatest when pre-planned
and built into the mining operation. Even then, alle-
viation of some side effects requires post-operation
activity such as treatment or maintenance of abatement
installations. In some situations, where one or more
side effects can not be prevented, prohibition of the
mining operation is the only suitable remedy.
3. Although the owner of land presumptively owns
the minerals within, ownership may be severed so that
the surface and the minerals belong to different persons,
The owner of minerals, whether or not he is the surface
owner, may extract them himself or he may give the
right to extract them to someone else, usually by means
of a lease. The practice of severing ownership was
greater in the past than it is today. However, sever-
ances have produced a significant amount of split
ownership.
4. Separate ownership of surface and minerals has
complicated procurement of requisite assent to perform
reclamation activities. Both severed ownership and the
practice of leasing operating rights have complicated
allocation of responsibility for coal mine side effects.
In the past, neither the surface owner where ownership
IX
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was split nor the lessor of the mineral rights were
generally held responsible for the environmental damage
resulting from the mining operation.
5. Private litigation does not afford an effective
vehicle through which coal operators can be made to
internalize the costs of coal mine diseconomies occasion-
ed by their operations.
6. All four states have adopted legislation enab-
ling the creation of water quality standards and pro-
hibiting discharges in violation of those standards .
The legislation or the regulations thereunder limit
acid drainage discharges. The application of these
rules to inactive mines has been uncertain. All four
states have statutory provisions requiring some form of
mine sealing. Except in Pennsylvania, however, these
provisions are directed more at diminishing safety
hazards than at drainage.
7. All four states have adopted legislation regulat-
ing surface mining. This legislation is generally
marked by requirements of a license or permit to mine,
filing of a bond or security deposit, prescribed reclama-
tion standards, liability for revocation of the permit
if reclamation requirements are not performed and
creation of a fund made up of fees or per-acre contri-
butions by mine operators which has the purpose of
financing reclamation of unreclaimed stripped lands. •
Aside from the fund last mentioned, surface mining
legislation generally does not reach reclamation of
inactive surface mines. Except for a limited prohibi-
tion in West Virginia, no state prohibits strip mining
outright, although prohibition may come about through
the refusal of a license where grave side effects can
not be prevented.
8. In Pennsylvania and Maryland, bonds have been
authorized to finance state reclamation activities on
inactive mines.
9. It sometimes is necessary to distinguish active
from abandoned mines for regulatory purposes. The
definition of "abandonment" developed by the cases in
other contexts is often inadequate to meet the needs
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of effective environmental regulation.
10. In most instances the states may limit the dis-
charge of acid drainage from coal operations, without
compensating the coal operator.
11. If application of a ban on surface mining
prevents a coal operator from receiving a fair return
on his investment compensation is constitutionally
mandated.
12. The states may constitutionally impose the cost
of remedying past environmental degradations resulting
from coal mining on the present generation of miners.
13. In Maryland and perhaps West Virginia, state
constitutional amendments would seem prerequisite to
abatement or reclamation programs involving acquisition
of land by the state and its subsequent transfer back
to the private sector, following restoration.
14. The four states have a variety of constitutionally
imposed strictures on the ability of the states to borrow
money which interfere with the public financing of abate-
ment and reclamation projects.
15. In Maryland imposition of the costs of pollution
abatement and reclamation on mining operators would not
result in substantial curtailment of coal production.
XI
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RECOMMENDATIONS
1. Authority to regulate coal mine side effects
should be exercised by a single state agency. This
agency should be headed by a single executive official
and be placed within the state's major natural resource
department (e.g. Department of Natural Resources,
Department of Environmental Affairs, etc.).
2. The Agency should have rule-making authority to
establish "background" quality standards in mined areas;
these background standards would create parameters which
limit adverse environmental impacts on air and water
quality, preclude excessive noise and subsidence, and
require surface restoration.
3. The agency should have rule-making power to
prohibit mine operations which under the present state
of technology are not subject to effective reclamation
or which present a public health or safety hazard.
4. Mine operators should be required to get approval
from the agency prior to engagement in mining operations.
Such a permit system would shift the burden of establish-
ing that a mining operation will not have adverse environ-
mental effects to the applicants and provide a vehicle
through which responsibility for degradations can be
fixed. Rights granted to a mine operator pursuant to a
permit should be subject to suspension or revocation
by the agency for violations of the permit's terms.
A bond or security deposit should be required in an
amount sufficient to defray the cost of completing
reclamation should the operator fail to do so.
5. A severance tax on the taking of coal should be
established. The rate should be fixed so that the
proceeds from the tax will create a fund which when
added to forfeited bonds and security deposits will be
sufficient to pay the capital and operating costs of
controlling mine side effects.
6. The agency should be empowered to directly engage
in projects and to acquire, construct and operate
facilities which deal with coal mine side effects.
xiii
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Projects would include an inventory of mining operations
and facilities would include mine acid treatment plants.
An expedited condemnation power should accompany the
powers given the agency.
7. The costs of remedying past adverse environ-
mental side effects resulting from mining operations
which were lawful when undertaken should be paid from
general revenues. The cost of remedying future environ-
mental degradations to the extent possible should be
charged to the responsible mine operation; if there is
no responsible mine operator such cost should be charged
to the mining industry generally.
xiv
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INTRODUCTION
This study deals with the environmental problems
occasioned by coal mining. It is the product of a fifteen-
month inquiry into the legal steps which may be taken at
the state level to remedy and prevent environmental degra-
dations. It is titled Legal Problems of Coal Mine Reclama-
tion : A Study in Maryland, Ohio, Pennsylvania, and West
Virginia.
Coal mining produces a variety of environmental
degradations — acid drainage, sedimentation, surface sub-
sidence and surface scars. These side effects are a prod-
uct of the technology of the taking and the economics of
the alternatives. But law is the vehicle through which
technology can be constrained, and through which a shift
in taking procedures may be mandated. The study, there-
fore, intermeshes its legal analysis with technical and
economic considerations.
The term reclamation in the subtitle is used
generically to embrace the full range of possible responses
to environmentally degrading side effects resulting from
mining. Hence it includes not only surface regrading and
revegetation but also procedures for sealing or treating
acid mine drainage. However, not all the environmental
problems associated with coal are closely reviewed. Burn-
ing of coal with a high sulphur content presents a signi-
ficant air pollution hazard. Likewise, mining operations
pose health and safety hazards to coal miners. Since this
study is primarily concerned with the physical environmen-
tal problems resulting from coal mining, these problems are
only tangentially discussed.
The four subject states, Maryland, Ohio, Pennsyl-
vania and West Virginia, are not the only areas with coal
mines which produce environmental problems in the Appala-
chian region. Kentucky, in particular, has been and con-
tinues to be extensively mined. But the four subject
states do have a common denominator — they constitute the
region in which the American coal industry began, and con-
tain that combination of inactive and active deep mines
and strip mines which is particularly productive of all the
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side effects considered.
The study is divided into eight chapters. Chap-
ter One, A History,of Appalachian Coal Mines, traces the
social and economic antecedents of today's coal industry.
Chapter Two, Side Effects of Coal Mining, details the
causes of environmental degradations from coal mining and
the procedures for reclamation. Chapter Three, Coal Rights
and the Property System, describes the legal calculus which
allocates property rights in coal and coal lands. Chap-
ter Four, Common Law Responses to Coal Mine Side Effects
and Chapter Five, Statutory Responses to Coal Mine Side^
Effects, review the efficacy of litigation and regulation
as devices for forcing coal operations to internalize the
environmental damages occasioned by their operations.
Chapter Six, Constitutional Limitations on State Action,
investigates the extent to which state or U.S. consti-
tutional provisions limit the ability of the states to deal
effectively with side effects. Chapter Seven, Coal Mining
in Maryland: An Economic Case Study, presents a methodolo-
gy which may be used to improve decision-making. Chapter
Eight contains a model state statute designed to give state
administrators the requisite reclamation powers. This
legislation meets the mandate of Section 14 (c)(2) of the
Water Quality Improvement Act of 1970 which provides as a
prerequisite to federal participation in a reclamation
project: "that the state or interstate agency shall provide
legal and practical protection to the project area to
insure against any activities which will cause future acid
or mine water pollution."
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A HISTORY OF APPALACHIAN COAL MINES
Man has always required heat, synonymous with
life and energy, and worshipped light. He learned to
capture both in fire, and with that discovery came a new
mastery over the quality of his environment.
Primitive people burned the obvious and easily
attainable things -- dried leaves, grass, peat, wood —
before they found that by banking a wood fire the gases
could be burned off, leaving charcoal, which in turn
yielded a more intense and evenly dissipated heat. It is
probably this kind of fuel to which reference is made in
the Bible (Proverbs XXXVI): "As coal is to burning coal,
and wood to fire so is a contentious man to kindle strife."
By the Tenth Century B.C., when this passage could have
been written, bituminous coal remained undiscovered.
One hundred and fifty million years ago vast
ridges and low depressions folded and formed near what are
now the Appalachian Mountains, and ages later swamp forests
developed in the valleys, bearing and shedding spores and
thick leaves. Rock formations beneath the forests sank
and rose in cycles, taking their carboniferous tenants to
a silty grave many feet beneath the surface. New forests
crept back centuries later, growing atop the fossilized
predecessors, rocks rising again and trees once more
shedding their leaves.
This ineluctable pattern continued until about
seventy million years ago, at which time a great geographi-
cal revolution convulsed most of northeastern America.
Large masses of surface land, twisted by enormous pressure
and heat, were finally thrust up into the Appalachian
mountains. By that time all the coal in northeastern
America, from the softest bituminous to the hardest anthra-
cite, had been formed and deposited.
Meanwhile on other parts of the earth — in
Europe, Asia and China — dense carboniferous forests
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continued to grow for another fifty million years, as they
did in western American coal fields until another physio-
graphic trauma raised up the Rockies and the Andes. This
happened twenty million years ago, the point at which all
the coal we possess had been packed away into the ribs of
the earth. That which had undergone relatively little
stress became bituminous or "soft" coal; that which with-
stood great heat and pressure became anthracite, a harder
and ultimately superior substance. The biggest and richest
deposits of anthracite lay in northeastern America, princi-
pally in the area that is now Pennsylvania.2
The early civilizations probably used some of the
coal beneath their feet (even in the Tenth Century B.C.,
the world's mountains had vast mineral cores), but the
first records of "black rocks" were made by the Romans:
Theophrastus wrote about "rock coal" (as opposed to
charcoal). At a corresponding time, the English were
mining coal — bituminous cinders and crude mining imple-
ments have been found with the remains of early Britons.
In 852 A.D. the Abbot of Peterboro wrote a receipt for
twelve cartloads of coal, and in 1180 the Bishop of Dur-
ham offered a brief description of mining techniques.
Other civilizations had used coal for ornamentation, but
the English were the first people known to use it for heat.
By 1250 A.D., wood was getting scarce in England
and its price was inflating rapidly. London began to
import coal from surrounding towns. Despite the high cost
of wood and the general availability of coal, in 1306 the
English Parliament decided that burning coal was harmful
to health, and called for its prohibition. At least one
luckless Londoner was executed under the law.'* As it
turned out the wood lobby did not yield until the end of
the 14th century.
For many years England produced most of Europe's
coal. When the Commonwealth was extended into North America,
the Mother Country also became the colonies' chief supplier,
despite the rich coal fields upon which the new settlements
were built. But the frontier economy was almost entirely
agricultural, and there was little demand for coal until
the mid-1700's. Whatever colonial industry did exist at
this time found an abundance of wood fuel within easy
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access, and coal from England was used primarily in Phila-
delphia, then the leading industrial city on the coast.
The total quantity of coal used yearly in the colonies
prior to the Revolution never exceeded 9000 tons.
That the colonists did not use their own land's
coal may be attributed in part to ignorance of its
existence. For their part the Indians had thought coal
to be little more than shiny black rocks. With the lone
exception of the Hopis, in Arizona, who as early as 1000
A.D. used lignite for burning pottery, coal was never
employed by the native American red man for anything more
than making paint and ornaments."
In 1700 America was still largely a forest-clad
wilderness, and there was little to suggest the extent of
the coal deposits which rested beneath it. The Indians
and an occasional hunter clambered over the mountains and
through the woods but no one dug very deeply, until some
curious settlers took notice of certain black rocks with a
peculiar glossiness to them.7 The first reference to
"stone coal" in America dates to 1669 — found, as legend
has it, by a Virginian hunter pulling up a small tree
along the river bank. Not until 1745 was the first coal
mine established.^
It is important to understand colonial terminology.
In the Seventeenth Century "coal" meant charcoal — the
most commonly used fuel.. In England, from the early part
of the 13th century, bituminous coal was called "sea coal"
because it fell into the ocean from the seams exposed in
the overhanging cliffs. On this continent the term "stone
coal" was used to differentiate it from charcoal. Alexander
Hamilton mentioned "fossil-coal" in his reports and in 1781
Thomas Jefferson called the substance "mineral coal."9 The
word "mine," when used by early writers, had a different
meaning; in the 1700's a mine was simply a deposit or out-
cropping of coal. When the actual extraction of coal
began, it was from "pits" (today's mines).
The earliest official reference to coal in the
United States is found in the accounts of Joliet's expedi-
tion to the Mississippi River in 1673. Seven years later
LaSalle found coal near the Illinois River. In 1698, the
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discovery of the mineral in Pennsylvania was announced in
a treatise by Gabriel Thomas. A 1736 map of the Potomac
River noted the presence of coal in Maryland and West
Virginia. Seams were not found in Ohio until 1750.10
By 1760 most of the colonies which had coal fields
within their borders knew about them, but very little had
been done to tap the vast underground wealth. The colonists
had wood in great abundance, and Britain pressured them to
import what little coal was used. Moreover, the areas where
coal had been discovered were far outside the boundaries
of eighteenth century civilization. Adventurous trappers
and traders had an idea of the mineral's potential value
but few settlers would risk going to get it. As early as
1736 one of the world's richest coal deposits, the Cumber-
land Field, was marked on a map of the north fork of the
Potomac River — but at that time not a single permanent
settlement existed within a 100-mile radius. Finally, in
1754, a group of far-sighted Pennsylvanians began to exploit
the resource lumped about their feet. They were the first
colonists to do so. The early entrepreneurs formed the
Susquehanna Company and bought from the Ten Indian Nations
all the land in the Lackawanna and Wyoming Valleys of north-
western Pennsylvania. Perhaps even the buyers were not
fully aware of the wealth they had purchased, and certainly
it was a small sum for which the Ten Nations deeded to the
colonists 484 square miles of rugged, mountainous country.
Below ground extended four irregular canoe-shaped fields
of anthracite, the largest and richest beds yet discovered
in the world.H
The first actual production of coal in the
Appalachians occurred in 1768, when the proprietors of
Pennsylvania purchased from the Indians the area around
Pittsburgh and began to lease parcels for coal developing.
By 1776 coal was being used in the armory at Carlisle to
help forge weapons for the Continental Army. In a broad-
side delivered by the citizens of Alexandria, Virginia and
Georgetown, Maryland (dated December 7, 1789) attention was
called to the advantages of their Potomac homeland as the
site for the national capitol. They advertised that "slate,
marble, free-stone, and iron ore may be had in great abun-
dance. . .of coal, too, there is an inexhaustible quantity
near Cumberland, convenient to water carrying."12 Follow-
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ing the Revolution, the coal fields of Eastern Pennsyl-
vania and their value to the new nation was likewise
discussed by Tench Coxe (Secretary of Treasury, 1794)
and soon the sites of rich seams became a primary criterion
for locating new towns and cities.13 While not extensive,
there was continuous need of coal at places along the
Potomac at least as early as 1798. The major user was the
United States armory at Harper's Ferry, whose rifle works
began operations with coal as the primary fuel.14
After the Revolution settlers began to move west-
ward over the mountains, into the far reaches of Pennsyl-
vania, Virginia and West Virginia. By the early 1800's
they had reached down into Kentucky and pushed further into
Ohio. With the growth in population and an increasing
scarcity of wood on the eastern seaboard came greater
reliance upon coal. By 1830 production west of the moun-
tains surpassed that to the east.
The greater use of American coal (as opposed to
the imported variety) began in the 1810's, spurred by an
embargo on shipping due to the War of 1812. However, a
number of problems were raised by the shift from foreign
to native coal, the most serious being transportation.
When importing, there had been little trouble getting to
the major coastal cities, which at that time bought 90%
of all the coal that entered the country. But when the
east coast looked to the west for fuel, it found that ade-
quate means for carrying coal out of the mountains and into
east coast furnaces were virtually non-existent.
This was the first of a series of transportation
difficulties that plagued the development of the coal lands.
As is usually the case with heavy and cheap materials, the
extent to which they can be profitably marketed depends upon
the cost of transportation. At the beginning of the Nine-
teenth Century, the roads were poor and there were no
mechanical means of haulage; in many states, particularly
in Pennsylvania, most rivers remained unnavigable. The
early producers could not move their coal more than a few
miles from the mines.15
The need for more efficient methods of trans-
portation to and from the western areas had been urged
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even by George Washington. The first turnpike over the
Alleghenies, completed in 1818, reached to Wheeling, West
Virginia. Because of the great weight of coal, however, the
turnpike was of limited value to its shipment.16 Profitable
production awaited the introduction of improved means of
transportation — the development of the steam engine and a
system of canals.
In the early 1800's, when the need for coal had
become urgent, serious thought was given to western canals.
The increasing population, the scarcity of wood fuel, the
embargo, and perhaps most important the discovery that coal
could be used in iron smelting, all served to put pressure
on state legislators to connect east with west. In 1811
the first steamboat appeared on the Monongahela River and
revolutionized navigation on Pennsylvania's rivers. Nine
years later canal systems were built in Pennsylvania and
Maryland.1?
Around 1810 it was learned that coal — if fired
correctly — could be used to smelt iron ore. Prior to
this discovery only charcoal had been used; with supplies
rapidly depleting, manufacturers needed an alternative
fuel. Before the Nineteenth Century the various proper-
ties of coal had not been fully understood and the rock
was used primarily for domestic purposes: home heating,
brick-making, blacksmithing. With the proper firing
formula came a period of rapid growth for the industry.
The use of coal in iron production began as soon as the
mineral was made available to the eastern manufacturing
centers. By 1840 coal had become the exclusive fuel, fully
replacing charcoal. ^
But the increased use of coal came as a mixed
blessing to the mining regions. In 1800 a visiting English-
man wrote of his approach to Pittsburgh:
"We were struck with a pecu-
liarity nowhere else to be
observed in the states; a
cloud of smoke hung over it
in an exceedingly clear sky,
recalling to me choking recol-
lections of London. The
8
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clouds, I am told, come from
the coal the townspeople burn."-*-^
Indeed Pittsburgh soon came to be called the "Smoky City."
In 1807 another traveler noted that "the first entry into
Pittsburgh is not agreeable, as the sulphurous vapor rising
from the burning of coal is immediately perceptible."2(-)
Probably one of the first anti-pollution devices to be
commercially advertised was touted by the Pittsburgh
Gazette in 1814. Addressed to "the inhabitants of
Pittsburgh," the notice called attention to a device for
"consuming the smoke of coal furnaces, etc., adaptable to
any boiler or copper, at a very small price, without requir-
ing more coal than usual."21 Beginning in that year,
editorials regularly condemned polluters — perhaps to
little avail, as conditions were to worsen for more than
a century afterward.
In 1819 Pittsburgh suffered what is now known as
an atmospheric inversion. The surrounding air became so
dense that townspeople were forced to wear goggles, and
one newspaper reported:
"Our thick atmosphere...has
been unusually gloomy for a
few days...the cause is a
large quantity of wood smoke,
this added to the thick haze
of an Indian Summer and our
always heavy coal smoke has
upset all our philosophy.
Many wear goggles, the rest
are generally in tears."22
Despite this unpleasantness, numerous coal towns
sprang up through western and northeastern Pennsylvania,
western Maryland, eastern West Virginia and eastern Ohio.
In 1821 a West Virginia newspaper ran an advertisement for
colliers:
"From 10 to 20 steady and indus-
trious men, who understand
digging coal, may obtain high
wages in Kenhewa for that
business."23
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A few days later the contractors announced they had received
over 100 job applications. Tracts of land were opened by
various other companies, and there was seldom any diffi-
culty finding takers.
Whence these men who "understood coal digging"
when coal was so new to the country? Most of them immi-
grated to the United States from Europe, particularly
Wales where coal had been mined for more than a century.
Others came from England, Ireland, and various parts of
eastern Europe, hoping to make their fortunes teaching
an upstart country how to use its new found resource. A
good number of the early arrivals became wealthy. They
had come just prior to the discovery that coal could smelt
iron, and with relatively limited funds they purchased
coal property. When demand suddenly increased and prices
rose, the immigrants became charter members of a growing
class of entrepreneurs.
The coal regions of Pennsylvania, Maryland,
Virginia and West Virginia grew and prospered during the
first half of the Nineteenth Century. In 1838 the
Pennsylvania Legislature directed its Secretary of the
Commonwealth to collect data on all of the state's
resources — the country's first official collection of
coal statistics. The survey showed that in Pittsburgh
alone the coal industry had contributed $565,200 to the
city's economy. By 1839 coal had become a million-dollar
business in both Pennsylvania and Maryland, and during the
next three years West Virginia and Ohio could make similar
claims.^4
With the completion of the B. & O. Railroad to
Cumberland in 1842 and the C.& 0. Canal in 1850, Maryland
coal could be transported from the west to the tidewater
areas. The Free State's coal fields developed rapidly.
In 1822 the canal along the Schuylkill River in
Pennsylvania had been finished. During its first year of
operation 1500 tons of coal were hauled through; by 1841
the tonnage had grown to 6500. In that year, the railroad
connecting Pennsylvania and Ohio coal fields with the east
was completed, and canal traffic began to decline.25
10
-------
The outbreak of hostilities between the states in
1861 greatly increased the demand for coal as both North
and South sought to cut off one another's supply lines.
By 1864 all mining activity had ceased in West Virginia —
not to be resumed again until 1867. During that lapse
dams were washed out, the turnpike became overgrown, and
heavy damage to the mines occurred. Operations of Mary-
land's B. & 0. were likewise seriously hindered by mili-
tary activities and the mining of coal severely curtailed.
Within a year of the reopening of the lines in 1865,
however, Maryland's production was greater than ever.26
Following the Civil War, as newer and heavier
factory machines were developed, the nation's renewed
demands for iron were reflected by manufacturers clamoring
for coal, by now the prize fuel. But mining operations
were becoming more difficult as supplies from, surface
fields were exhausted — the coal companies were forced to
go farther and farther underground.
In practically every field opened before 1840,
coal was recovered by quarrying — an operation done by
hand, on a small scale, which amounted to simplified strip
mining. New quarries were opened as soon as recovery
became too difficult or expensive. When it became nec-
essary to drill into hillsides, the coal was undercut by
hand and taken out on sleds.27 After the Civil War,
however, with the surface veins of Pennsylvania and Mary-
land nearly depleted by North and South, the primitive
quarrying methods proved inadequate to meet demands.
Two innovations changed the fortunes of the coal
companies and the lives of their employees, as well as the
surface of the land: underground mining and the widespread
use of explosives. Perhaps even more consequential were the
changes in mine ownership. The Civil War had given rise to
large iron and steel companies, at that time the principal
coal consumers. It did not take long for these early corpor-
ations to realize that if they owned and operated their
mines they could greatly cut their costs. Iron and steel
companies sent emissaries to purchase as many coal proper-
ties as were available, before news of their value leaked
out. Seams opened and operated by the big corporations
were known as "captive" mines, meaning all the coal prod-
11
-------
uced was captured by the companies for their own use.28
The implications of the shift in ownership
(from small, private companies to large corporations)
were particularly important to the immigrants still
flooding over the mountains. Prices were too high to buy
the small bits of real estate left by the corporations,
but so desperate were the inexperienced mining companies
for the skills of professional miners that they often
recruited in Europe and paid for the passages of exper-
ienced hands.29 The immigrants still had- advantages
over those who would follow.
The price of coal rose steadily through the
1870's and 1880's. Mine owners had become wealthy and
could afford to build attractive settlements for their
employees. Most of the mining towns constructed in the
1870's were well laid out, consideration being given to
planning for churches, schools, recreation facilities
and meeting houses. The houses were coal-heated, of course,
and built of sturdy wood. Except for occasional cave-
ins and other disasters occasioned by the shift to under-
ground recovery, the life of the miner in the years
immediately following the Civil War was reasonably com-
fortable. He was usually well paid, his skill respected.
The relatively good working and living conditions
did not prevent the miners from trying to organize, although
early attempts at unionization were mostly unsuccessful.
Prior to 1848 there were few concerted movements to union-
ize; that year, however, in Schuylkill County, Pennsylvania,
the first United States miners union was formed. A sec-
ret organization created in 1859, called the Equal Justice
Society dissolved after attempting an unsuccessful strike
for higher wages. In 1861 the American Miner's Associa-
tion was formed in Illinois. Two years later it had spread
to Ohio and Pennsylvania, but the union folded in 1864
following internal confusion.
While scattered locals were started during the
Civil War, no large-scale attempt was made to organize the
coal fields until 1868. This movement was spearheaded by
the Miner's and Laborer's Benevolent Association, which was
founded in 1868 in Pennsylvania and soon spread to Maryland
12
-------
and Ohio. In 1869 the M.L.B.A. called a long strike to
support its demands for uniform wage standards. (At that
time miners worked ten-hour days, six days a week, for
from $15 to $18 weekly, a comparatively high salary for
the era.) In 1873 the M.L.B.A. was absorbed by the
National Association of Miners of Ohio. This union reached
its zenith in 1875, then collapsed.30
In 1875,the biggest and most organized miner's
union to that time was formed. Fostered by the Knights of
Labor, it called itself the National Federation of Miners
and Mine Laborers of the United States. Fights for higher
wages did not begin until the 1890's; the Federation's
initial grievances were directed against unscrupulous
company stores and hazardous underground mine conditions.
Alongside of these publicly formed organizations
grew many secret ones. Groups known as the "Buck Short, "
the "Sleepers," and the "Ribbonmen" were created before,
during, and after the Civil War. The maverick fraternities
were made up mostly of immigrants who had been excluded
from formal unions; many of them were crude fighting men,
not averse to violence. The most notorious of the clandes-
tine organizations was the Molly Maguires, which began in
the Pennsylvania anthracite fields in the late 1860's.
Racial prejudice and anti-Catholic sentiment ran high through
many of the mining towns; the Molly Maguires were frustrated
Irish immigrants angered by discriminatory hiring practices.
The rise and fall of the "Mollies" occurred over
a short span of years, but during its life the group
attracted worldwide notoriety. The Molly Maguires regularly
went on rampages of murder, riot and sabotage. Their
activities were not brought to an end until the organiza-
tion had been infiltrated by Pinkerton men and exposed.
The summer and autumn of 1876 were filled with the trials
and hangings of more than a score of Molly leaders.31
Although incidents of violence have continued to scar the
mining industry up to the present day, the decline of the
Molly Maguires signaled an end to large-scale secret
organizations of miners.
The later decades of the 1800's were character-
ized by a power struggle among the various large unions.
13
-------
The contest for the miners' allegiance eventually narrowed
to one between the Knights of Labor and the National
Federation of Miners and Mine Laborers. Both groups fought
continuously until January 23, 1890, on which date they
joined in Columbus, Ohio to become the United Mine Workers
of America. -^ The UMW continues to represent coal miners
throughout the country.
The coal boom continued into the Twentieth
Century. The "age of invention" had begun and each new
creation boosted market demands, particularly from the
automobile industry.
With the First World War massive amounts of
supplies -- steel for munitions, food and clothing for the
army, lumber for ships — had to reach their nationwide
destinations by rail. Coal supplied 70% of the energy to
keep the locomotive wheels turning. Though eleven
thousand mines were in operation by 1920 to supply the
country's needs, prices continued to rise. The "War Brides"
of the Appalachians were born, companies which flourished
while war prices were high and closed when the prices
went down. ^
Coal markets continued to expand after the First
World War, though their growth was slower and more irregular
than before. Two new fuels, natural gas and petroleum,
were now beginning to satisfy the call for fuel.
As consumers were turning to new sources of
energy, labor disputes and sporadic strikes and violence
made the supply of coal unsteady in the decades of the
20's and 30's. The Second World War again underscored the
need for freight to move from coast to coast, so again new
mines were opened and again the industry flourished.
Coal heated millions of homes, powered huge locomotives,
and fed burgeoning electrical plants. The industry hit
its peak in 1947, when it produced 630 million tons of
coal.34
By now, however, diesel-electric locomotives had
come into use and natural gas and fuel oil had begun to
assume preeminence as the nation's primary home heater.
The industry looked for a new, less expensive way to
14
-------
retrieve coal from the earth. It found its answer in
widespread strip mining.
Throughout the 'Fifties and the first half of
the 'Sixties, the coal producers struggled to regain
their wartime successes. A revival began in the late
1960's and continues today. By 1970 production was more
than 600 million tons.35 In 1970 renewed demands for
coal, intensified by a fuel shortage and subsequent energy
crisis, shot prices up from $6.00 to $13.00 per ton.36
With natural gas in increasingly short supply and fuel oil
becoming more difficult to obtain, and with steel produc-
tion pinching supplies, mines which not so long ago were
closing because of a coal glut are now digging in to meet
seemingly endless demand.
Japan has quadrupled its steel output since
1965, and now imports up to 95 million tons of coal a
year. Japanese steelmen are investing 500 million
dollars to finance new mines in Canada, Australia, South
Africa, the United States, India, Poland and Russia.3^
The United States has been Japan's largest supplier of
coal, exporting 21 million tons in 1970, but the limited
domestic supply is making it more lucrative for coal
producers to keep their product at home. Electric power
needs, moreover, are doubling every ten years. There is
little likelihood of a voluntary slowdown in demand.
Only the disadvantages inherent in extracting
coal from the earth, and the environmental pollution to
which the fuel contributes afterwards, may serve to depress
production figures.38 Though new techniques are being
developed to eliminate the high percentages of sulphur
oxides given off by burning coal, serious mining problems
remain.
The industry's pitch — that the cheaper its
product the better the nation's economy — cannot be
faulted by elementary logic. But it is difficult to
overlook the environmental consequences of strip mining.
Here is how one journalist describes the process:
A herd of coughing machines
crackle the once serene
15
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mountain air. To reach the
coal, the machines must first
attack the trees. They quiver
against the knives and give up
with a shudder. Bulldozers
push them aside and bite into
the surface dirts, which is
added on top of the trees.
Gradually, a bank of debris
begins to grow — a spoil
bank — and as the machines
meet the rock, they shred it
with powerful explosives.
Power shovels come to help
the bulldozers. Ton upon ton
of shale rock, which disinte-
grates into clay when exposed
to air, is added to the fast-
growing bank. (Sterile sub-
soil — upon which nothing
will grow because it has been
rendered devoid of life-
giving minerals — is unearth-
ed and piled on top. When it
rains, the pile soaks up
water like a sponge and takes
on a viscous quality.) Now
the coal is exposed. It looks
like a solid black roadway.
Small tractors with brushes
whisk away the last dirt from
the exposed vein. The power
shovels break up the coal and
lift it onto trucks which
haul tons at a time to the
railhead.
Even as this coal is being
put onto trucks, bulldozers up
ahead cut new swaths in the
land. As they move one, the
mountains of spoilbanks remain
as a permanent, festering scar
that will never heal. When
it rains and the banks become
16
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soggy, they tear loose and
slide down mountainsides,
scouring off timber and
topsoil. Families are often
sent scurrying. The banks
pour onto the croplands below,
covering them with barren
subsoil which may lay dormant
for decades. This is how the
coal areas have been ravished.
The disaster visited on them
is called strip mining.39
Between the Civil War and World War I, most of
America's coal was extracted through shaft mines, intricate
networks of tunnels running miles beneath the earth.
Strip mining is much faster and requires fewer men.
Technological improvements on the already incredible
stripping machines make the operation even more profit-
able. The new gougers demolish tracts of land by the
hundreds of square miles.
Legal efforts are now being made to protect such
lands from future degradation. States have enacted a
variety of laws designed to require abatement of acid mine
drainage and requiring regrading and revegetation of sur-
face mines. But the technology for preventing mine drainage
is imperfect, and according to one mountaineer:
"Strip mining laws are kind of
like letting a fellow go ahead
and commit rape -- provided he
signs a bond guaranteeing to
restore the victim to her
original condition — it can't
be done."40
Moreover, the problems surrounding who should pay to reclaim
orphaned mines (those abandoned before present laws) remain
serious. For example, to abate acid mine drainage alone,
from underground and surface mines it is estimated that
$6.6 billion would be required.41
The coal industry of 1971 is very different from
what it was ten years ago. For a while coal production was
17
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moribund, until late in the 1960's when a revival began
that is still under way today. Part of the coal industry's
renaissance is due to the cyclical scarcity of other fuels.
Natural gas is in short supply because of diminishing
reserves and producers holding back for higher prices.
Fuel oil costs have also escalated. The ever-increasing
demand for steel has likewise again boosted the need for
coal. Steel mills around the world are running short of
coking material. With electric power needs doubling every
ten years, there is little likelihood of a slowdown in the
coal boom.
The trend in the coal industry of the 'Seventies
is toward size, speed, and efficiency. A greater and greater
volume of production seems inevitable.
18
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II
SIDE EFFECTS OF COAL MINING
Like all of man's activities, coal mining has
its share of environmental insults. Foremost among these
is the degradation of streams by acid drainage and sedi-
mentation. Eight of the nine coal-producing states in the
Appalachian Region suffer from these side effects.*
Closely related are subsidence from underground mining and
the ugliness, safety hazards and diminution in land values
created by surface mining. Coal extraction may also result
in fires in coal seams and refuse piles. This chapter
will first describe mining methods, and then take up each
problem, describe its causes and effects, and note the
remedial measures recommended for its abatement.
Coal mining presents some environmental problems
which are not discussed in this chapter, although some of
the remedies mentioned will also ameliorate them. These
include airborne dusts from extraction and preparation,
shocks from explosives and abandoned equipment.
Many of the problems created by coal mining are
also created by other mining operations (e.g., clay, iron,
stone, sand and gravel), or other earth-moving activities
(e.g., building construction). Only coal mining is consid-
ered here, however, and difficulties unique to extraction
of other minerals will not be discussed. Table 3, at the
end of this chapter, provides a picture of the relative
status of coal and other minerals with regard to surface
mining side effects.
*Alabama, Kentucky, Maryland, Ohio, Pennsylvania, Tennessee,
Virginia and West Virginia. Georgia is the only Appalachian
coal-producing state without a significant water quality
problem resulting from coal mining. Mississippi, New York,
North Carolina and South Carolina are the other states in
the Appalachian Region; they do not produce coal and their
waters reportedly have not been adversely affected by coal
mine effluent.
19
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A. Methods of Mining Coal4-^
Before coal is mined, a prospecting operation may
take place, typically in the form of drilling or bulldozing.
More modern techniques such as helicopter surveys may be
useful in some circumstances. Where ground methods are
used, construction of access roads may also be necessary.
Methods of mining coal fall into two broad
categories: underground and surface. In underground
mining, man and machine work in tunnels beneath the surface
to cut, tear or blast the coal away from its resting place.
The coal is then loaded onto conveyor belts or shuttle cars
which remove it from the mine. An underground mine is
called a shaft mine when it is reached by means of a
shaft dropping vertically from the surface. When the
entrance drops at an angle, the mine is a slope mine.
When the coal outcrops (comes out) on a mountainside,
mining may proceed horizontally from the surface directly
into the coal bed; this is a drift mine.
Although some cutting of bituminous coal is
still done by hand in the United States, almost all is
mechanical.44 Traditionally, the "room-and-pillar"
method has been used. Parallel tunnels ("rooms")fourteen
to twenty feet wide are driven into the coal bed, leaving
pillars of coal to support the roof. Artificial supports
such as timber and roof bolts are also used. The deposit
is transformed into a subterranean checkerboard of room
and pillar. When mining in an area is near completion, the
pillars may be removed ("robbed") to obtain the coal in them.
One mechanical technique which does not follow
this room-and-pillar method was recently imported from
Europe and enjoys growing popularity. Called longwall
mining, a whirling plow or plane shaves off the coal as
it is pulled along the coal face. The mine roof is
supported by jacks which follow the machine as it moves
forward into the coal, permitting the roof behind to
collapse. In 1969, about two per cent of underground
bituminous coal mining in the United States was done by
the longwall method.45
The rate of recovery of coal from the deposit
20
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in underground mining is relatively low, recently averag-
ing 57%. This average hides a wide variation among
individual mines, which range from 29% to 91% recovery.
One reason for this is that faster breaking, loading and
removal of the coal reduces the need to leave large
pillars for long-term support of the roof — at least
insofar as protection of workmen is the purpose of such
support. Longwall mining is perhaps the most efficient
technique in terms of recovery rate.
Surface mining for coal usually consists of
strip mining and, in hilly areas, augering. In strip
mining, the earth, rock and vegetation above the coal
deposit is removed by bulldozer, power shovels or drag
lines. These machines are sometimes behemoths, capable
of chewing as much as 220 cubic yeards of earth at a
bite and quickly spitting it out nearby. After this
"overburden," or "spoil," is removed, the exposed coal
is scooped out by smaller power shovels and loaded onto
trucks.
When the topography is relatively flat, surface
mining takes the form of area stripping. The overburden
and coal are removed in a long trench. A parallel second
trench is then made, with the spoil being piled in the first
trench. Successive parallel cuts are made, accumulating
row upon row of spoil ridges and a final empty trench.
In rolling or mountainous country, as is most of Appalachia,
contour strip mining is practiced. The overburden is first
removed above the outcrop of the coal bed, with the spoil
placed at or over the edge of the down slope. Additional
cuts are made into the hillside until the ratio of over-
burden to coal makes the operation uneconomical. This
produces a "bench" on the hillside, bordered on the out-
side by a spoil-covered rim and down-slope, on the inside
by a stark "highwall" rising as high as 100 feet or
more, encircling the bewildered mountains for miles. Some
mines may combine features of both area and contour
stripping, particularly in the anthracite region of eastern
Pennsylvania where the surface slopes are relatively gentle
but the coal beds are thicker than bituminous deposits
and vary in pitch up to 90 degrees.
When contour mining stops because the overburden
21
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is too high, augers are put to work. These are mammoth
screws up to seven feet wide which bore as much as 200
feet into the exposed coal face to extract the coal. A
series of deep thinly-divided caves are produced in the
mountainside.
Although strip mining is often called open pit
mining, the latter is sometimes distinguished. Both
involve flaying the earth to expose the mineral, but open
pit mining usually refers to recovery of deposits which
are much thicker than those obtained by stripping. The
overburden is relatively small compared with the amount
of mineral removed, and a single pit may be operated
for a long period of time. Some have been in operation
for more than a century. Limestone, marble, sand, gravel,
iron and copper are often quarried or mined by the open
pit method. Where coal deposits are particularly thick,
as in the Pennsylvania anthracite fields, open pit
extraction may also be used.46
Surface mining has enjoyed growing favor with
producers and for good reason — it is much more efficient
than underground mining. It permits recovery of more of
the coal in a seam and eliminates the problem of roof
support. When the overburden is too thin for underground
mining, it is the only way the coal can be extracted.
It is also not as labor intensive.
Although coal was commonly extracted by crude
surface methods in the early Nineteenth Century, strip
mining as we now know it awaited the development of large
earth-moving machinery. In 1915, less than one per cent
of bituminous coal production in this country originated
in strip mines. This slowly increased, but did not exceed
ten per cent until 1941. War demand then produced a
sharp boost, and by 1946 the proportion stripped had
jumped to 21%; in 1970 it was 40% of total production.
Anthracite stripping has had a similar history, except
that as anthracite production has diminished over the
past quarter-century the proportionate share stripped has
increased. In 1970 it was 50%. Coal augering began in
1945, and was credited with more than three per cent of
total bituminous production in 1970.47
22
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Whether these trends will continue in the future
depends on many factors — the demand for coal, the loca-
tion of potential coal deposits, legal controls, and
technological development. As modern technology increases
the amount of coal which can be recovered in an under-
ground mine, so does it increase the depth of overburden
which shovels and draglines can remove -- and the degrada-
tion and waste produced.
This discussion of mining methods has focused
on the activities of a single seam of coal. But Appalach-
ian coal beds are often situated in two or more layers,
separated by rock and other material. In such cases,
multiple-seam mining may occur, producing such phenomena
as two or three strip benches on a mountainside or one
mining tunnel beneath another.
Once coal has been extracted, it may be sent
through a nearby preparation plant to be crushed, washed,
sized, and perhaps chemically treated. This produces such
wastes as slate, shale, low-grade coal and coal dust.
This waste is heaped in huge refuse banks ("gob" piles
or, in anthracite mining, "culm" banks) which may be as
high as 700 feet and more than a mile long.
Refuse piles are not the only destination of
processing wastes. Fine refuse usually is piped to
settling ponds or discharged to adjacent streams as "black-
water" — water heavily laden with suspended coal dust.
Dust may also become airborn. "
Some coal is sent from the mine directly to con-
sumers -- chiefly utilities with equipment which does not
require processed coal. Almost two-thirds of bituminous
coal production in the United States does go through
a preparation plant, however.'*"
The waste coal which has been discarded in the
mining and preparation process is a source of new produc-
tion, at least in the anthracite fields of Pennsylvania.
Almost one-third of 1969 anthracite production came from
the re-working of culm banks, and river dredging produced
another five per cent. ^
23
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The tables which follow summarize the amounts
and methods of coal production.
24
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TABLE 1
TOTAL PRODUCTION
BITUMINOUS COAL AND PA. ANTHRACITE
(millions net tons - rounded)
1870
1890
1900
1910
1920
1930
1940
1950
1960
1970
Bituminous
U.S.
33.0
111.3
212.3
417.1
568.7
467.6
460.8
516.3
415.5
602.9
Md.
X
3.4
4.0
5.2
4.1
2.3
1.5
.5
.7
1.5
0.
1
11
19
34
45
31
22
36
34
55
coal figures include lignite
W.Va.
.3
.5
.0
.2
.9
.9
.1
.9
.0
.1
.
6.
21.
59.
89.
122.
126.
145.
120.
143.
6
3
2
3
6
4
6
6
1
1
Pa.
10.
40.
79.
148.
166.
123.
111.
103.
65.
80.
3
9
3
8
9
4
4
4
6
1
Pa.
14.
45.
57.
83.
89.
68.
510
46.
17.
9.
Anthr.
2
0
4
7
6
8
5
3
7
2
, where appropriate.
Sources :
U.S. Dep't. of Interior, Bureau of Mines
1910, 1920, 1930.
U.S. Dep't. of Interior, Bureau of Mines
U.S. Dep't. of Interior, Bureau of Mines
State of West Virginia, Department of Mi
Annual Report of the Maryland Bureau of
Commonwealth of Pennsylvania, Department
cite. Bituminous Coal and Oil and Gas
, Minerals
, Minerals
, Weekly
Resources
Yearbook
Coal Report
nes. Annual
Mines, 1970
Report,
1870,
1940,
#2815
1970.
1890, 1900,
1950, 1960.
, 1970.
of Environmental Resources, Anthra-
Divisions, Annual Report, 1970.
25
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M
TABLE 2
METHODS OF PRODUCTION AS PERCENTAGE OF TOTAL, PRODUCTION
BITUMINOUS COAL
1915 -
1920 ~
1930 -
1940 ~
1950 -
1960 -
1970 ~
UG
99
98
95
90
76
68
56
.4
.5
. 7
.8
.1
.6
.2
U.S.
Strip
.6
1.5
4.3
9.2
23.9
29.5
40.5
Auger ' UG
x ' 100
x ' 99.3
x ' 99.4
x ' 96.4
x ' 75.0
1.9 ' 67.4
3.3 ' 69.1
Pa.
Strip Auger ' UG
x x ' 100
.7 x ' 99.9
.6 x ' 1OO
3.6 x ' 99.3
25.0 x ' 91.0
31.9 .7 ' 91.8
30.2 .7 ' 81.8
W.Va.
Strip Auger ' UG
x x '98.8
.1- x ' 92.8
x x '95.0
.7 x ' 77.8
9.0 x ' 39,7
5.7 2.5 ' 27.1
15.4 3-5 ' 33.0
O.
Strip
1.
7.
5.
22.
60.
70.
64.
2
2
0
2
3
3
5
i
Md.
Auger ' UG Strip
x • 100 x
X ' 100 x
x ' 100 x
x ' 100 x
X ' 75.1 24.9
2.6 ' 34.8 65.2
2.5 ' 16.0 76.0
Auger '
x
x '
x '
x '
X '
X '
8.0
Notes:
Bituminous coal figures include lignite, where appropriate.
1915 first strip mining production figures collected.
1952 first collection of auger production figures.
x = no reported production. (U.S. Bureau of Mines figures do not include strip mine production from mines producing less than
1000 tons per year.)
Sources:
U.S. Dep't.of Interior, Bureau of Mines, Minerals Resources 1915, 1920, 1930.
U.S. Dep't.of Interior, Bureau of Mines, Minerals Yearbook 1940, 1950, 1960.
U.S. Dep't.of Interior, Bureau of Mines, Weekly Coal Report #2815, 1970.
State of West Virginia, Department of Mines, Annual Report, 1970.
Annual Report of the Maryland Bureau of Mines, 1970.
Commonwealth of Pennsylvania, Department of Environmental Resources, Anthracite, Bituminous Coal and Oil and Gas Divisions,
Annual Report, 1970.
-------
B. Acid Mine Drainage
1. Cause and Effect
Not all water which drains from mines is degrad-
ed by acid and related pollutants. But a major share of
the economic damage caused by mine drainage is attributable
to acidity, and more than ninety per cent of acid water
pollution is associated with coal mining.5^
The villain of mine acid formation is pyrite, a
compound of iron and sulphur frequently encountered in and
around coal deposits. A typical scenario in an underground
mine follows. When the coal is extracted, the pyrites in
the mine are exposed to oxygen and water vapor. These
react, oxidizing the pyrite. (There is some evidence that
bacteria exercise a catalytic role in this reaction, but
their significance relative to non-biological factors is
not yet known.^ ) The resulting products are washed or
seep'off the mine walls into ground water, which flows
along the mine floor with a further oxidizing and hydro-
lyzing effect. The total reaction is completed in the
receiving stream, which is then burdened with acid,
sulfates and iron oxide (ferric hydroxide), and often
other dissolved minerals such as aluminum, magnesium,
manganese, calcium, and ferrous iron. The red-yellow
iron oxide, known as "yellowboy", is only slightly soluble
in water, and typically precipitates out onto the streambed.
The amount of acid produced by a coal formation
depends on a variety of factors — especially the avail-
ability at any given time of the three elements in the
reactive process." The amount of sulfur-bearing material
in a seam varies with the region, and among different seams
in the same region.54 Refuse piles outside of underground
mines are often heavily laden with sulfuritic material.
At a surface mine pyrites are found in and around the
exposed coal face in the highwall and in auger holes.
Surface mine spoil piles also may be infused with pyritic
material, but typically lower in amount and less widely
distributed than in refuse banks. Roads built with mine
refuse also may contain pyrite, but the practice of using
refuse for this purpose has been greatly restricted in
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practice, and in some states prohibited by law.
56
Air provides the oxygen necessary for the initial
reaction. Even if an underground mine is sealed so normal
air currents are shut off, differences in atmospheric
pressure inside and outside a deep mine may cause the mine
to "breathe" — to inhale and exhale air through cracks in
the surface above the mine or in the rocks surrounding the
seal. When the pyrites are covered so that oxygen cannot
reach them, oxidation will not take place or will proceed
at an insignificant pace. Water may provide such a shield.
Underground mines and strip pits in which all pyritic
materials are submerged will not produce acid. This
shielding occurs naturally in mines which are beneath the
water table.5?
The water necessary for the initial oxidation
reaction is typically in vapor form. In Appalachia, the
relative humidity underground is high enough that oxida-
tion is not generally limited by a lack of water.58
The products of the initial oxidation reaction
are washed away from the pyrite surfaces by liquid water.
The most consistent mechanism underground is the slow
formation of droplets at the pyrite surface which seep
down to ground water flowing ultimately to receiving
streams. The periodic rise and fall of the water table
and precipitation filtering through the overburden also
may flush out oxidation products underground. Direct
precipitation is particularly important where toxic
materials are above ground, as in strip pits, refuse banks
and spoil piles; however, surface and ground waters can
also affect these sources, as where a strip pit interrupts
the water table.59
Although acid mine drainage primarily affects
surface water, the quality of ground water also can be
altered.60 Ground water is no respecter of mine boundar-
ies, but it may be influenced by them, and water flowing
into a mine may have passed through another mine nearby.
Hence the receiving stream may receive mine drainage whose
acid load is only partly or not at all caused by the mine
from which the waters emanate.
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Melting snow and greater precipitation in the
late winter and spring may significantly increase the
amount of acid drainage. This results both from a
greater washing away of the products of the initial oxi-
dation reaction and from flushing out acid which may have
been created earlier but which did not have an opportunity
to drain out of the mine, refuse bank or spoil pile. In
any season, a particularly heavy storm may create a "slug"
of acid in the receiving waters. Paradoxically,
precipitation may also result in lower pyrite oxidation by
creating a rise in the water level which submerges pyrite
surfaces.61
In addition to the variables described in the last
few paragraphs, one must take into consideration the effect
on mine drainage of other elements in the surrounding
strata or in the receiving waters. Alkaline materials
such as limestone in the surrounding strata will neutralize
all or in part any acid formed or even make the drainage
alkaline. The nature of the surrounding strata also will
determine what dissolved metals and other constituents are
in the drainage. Acid in the receiving stream may be
neutralized by alkalines naturally in the stream or dis-
charged to it by riparian industries. The harmful effects
of acid also depend upon its concentration in the receiving
waters, which varies with such factors as the stream's
size and flow.62
The amount of acid produced by a mine depends to
some extent on the type of mine involved. The worst offen-
ders are self-draining underground and auger mines. Even
after the mine is abandoned, pyrites are continually
exposed to air and water, and new pyrites appear as roof
and walls collapse or crumble. The peril is increased if
the overburden is thin, since collapse of the roof will
result in cracks and fissures which permit air and water
to reach the toxic materials easily. Acid drainage from
such mines is likely to continue interminably unless its
formation is stopped — and it is very difficult to stop.*
*Longwall mining can be especially hazardous since it
produces an immediate collapse of the roof behind the area
being worked as the coal is mined, filling the cavity with
loose material and creating cracks above.
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Underground mines which are below drainage risk acid
creation during active mining, but will usually flood upon
abandonment and cease acid formation. Strip mines may
produce more acid than underground mines during early
stages, and may continue to produce large amounts if not
properly reclaimed. Acid drainage is ultimately more
controllable in surface mining, however, since proper
reclamation will bury or inundate toxic material.
In the Appalachian region, 71.3% of the acid mine
drainage is estimated to originate in underground mines.
Surface mines account for 12%, combined surface and under-
ground mines 7.3% and other sources (coal processing plants
and refuse piles from inactive mines) 7.5%. Inactive
mines and refuse piles are the source of 78% of Appalachia's
acid drainage, with inactive underground mines accounting
for two-thirds of that amount. More than 85% of the drain-
age from active mines originates in underground mines.63
As suggested above, differences in geography,
geology, hydrology, mining method and season affect the
gravity of the mine drainage problem. It is relatively
insignificant in the coal regions of the western United
States, because of the dry climate and alkaline waters. It
is not as serious in southern Appalachia as in northern
Appalachia, because of lower sulfur concentrations and
greater alkaline materials in surrounding strata.64
More than 5700 miles of Appalachian streams are
continuously or intermittently sullied by acid mine drain-
age. Three-quarters of them are in the Susquehanna,
Allegheny and Monongahela River Basins in Pennsylvania
and northern West Virginia. Pennsylvania suffers most
from this blight in stream miles affected and tons of
acidity produced. In Ohio many streams in the eastern
area are affected, particularly in the Muskingum and
Hocking River Basins and Raccoon Creek. In Maryland,
streams near the Savage River Reservoir and the North
Branch of the Potomac River have acidity problems.65
In general, mine acid and its companions impose
costs on industrial and municipal water users; corrode
be-watered objects; eliminate or diminish aquatic life,
and reduce the value of water resources for recreational
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purposes.^6 Industries in the area use water chiefly for
boiler and cooling functions. High acidity and hardness
cause corrosion of equipment and scale formation, requir-
ing treatment of the water and, in the case of scale,
periodic removal. Other constituents must be removed to
make water usable for specific industries — for example,
iron and manganese in textile dyeing and metal plating.
Municipal water institutions typically must either treat
acid water or obtain alternative sources of supply.
Treatment consists primarily of neutralizing the acid and
bearing the increased hardness of the water. Damage to
boats such as barges and towboats consists chiefly of
accelerated corrosion, requiring increased maintenance or
earlier replacement of equipment. Damage to highway and
navigation facilities such as culverts, bridge piers and
dam structures also consists chiefly of corrosion and is
usually met by using corrosion-resistant metals in con-
struction.
The productivity of aquatic plant and animal
life generally is considerably reduced when acidity falls
below a pH of 5.0, a phenomenon which acid drainage may
well induce. In addition to its effect on conservation
values, this reduces the use of water resources for fish-
ing. High acidity as well as related eyesores, such as
yellowboy, reduce the value of water resources for recrea-
tional purposes such as swimming, water skiing and boating.
Although difficult to quantify, these losses must be taken
into account in developing any drainage control program.
2. Remedies
Eliminating or reducing the effects of acid
drainage involves one or more of four basic methods:
treatment to remove the acid and related constituents,
abatement at the source, disposal or dilution. The
method chosen depends upon the source and nature of the
drainage, the use to which the land and receiving waters
are to be put and the financial resources available.
There is no single technique which will be appropriate in
every case, and there are some cases where no measure will
be adequate. Little is known about the effectiveness of
many suggested techniques.
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a.
Treatment^?
The treatment technique most widely tested and
used is lime neutralization. Typically, this involves
construction of a plant to handle neutralization and
aeration of the drainage or stream water, and one or more
lagoons for settling the resulting sludge. This reduces
the acidity and removes the iron, aluminum and most other
dissolved minerals associated with it. But it has at
least two major drawbacks. First, it produces a relatively
large volume of sludge which is difficult to dispose of.
As with sludge from municipal sewage treatment plants, the
disposal problem is likely to become more serious as treat-
ment requirements are more widely imposed. Second, it
does not reduce, but usually increases, the hardness of
the water. Water hardness is not as grave a problem as
acidity, but it requires treatment of its own for certain
industrial water uses such as cooling, and renders water
less satisfactory for domestic uses.
Another method which has much potential for cer-
tain types of drainage but which is still in the early
stages of technological development is reverse osmosis.
The great advantages of reverse osmosis are that it produ-
ces a relatively pure water and results in a lower volume
of waste than lime neutralization, but brine must still
be disposed of. Other treatment processes are in various
stages of investigation.
b. Abatement at the
Although treatment is often necessary, abatement
at the source is the ultimate objective. Some drawbacks of
known treatment techniques have already been mentioned.
More important, treatment must be kept up as long as acid
is produced — which may be indefinitely. Even though the
cost of at-source abatement may be higher than that of
building treatment facilities, the continuing expense of
treatment is likely to make it much more costly in the long
run. Assuming the existence of pyrite, abatement at the
source consists of reducing or eliminating one of the other
ingredients of acid formation and transport: oxygen and
water.
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In active underground mines, oxygen entry cannot
be prevented. However, some of the techniques used to
prevent oxygen entry to inactive mines may be applicable to
those parts of active mines in which mining has been complet-
ed.
The most effective method of cutting off the
oxygen supply to an inactive underground mine is flooding
it. With mines below drainage, this can be done and may
occur naturally, although it may be necessary to seal mine
openings. It is much more difficult to flood mines which
are above drainage, since water in the mine is likely to
leak out, particularly around the outcrop, although leakage
points may be sealed. Impounded water may also break
through a weak outcrop barrier or a mine wall destroyed
by later mining. Although water seals of a bulkhead nature
were used as early as the 1930's and have been used in act-
ive mines to stem flows from worked-out areas, the tech-
nology is not yet perfected. Problems of water break-outs
suggest the need for leaving a sufficiently strong wall or
thickness of outcrop where flooding is a possibility, and
for keeping records of flooded mines. Before new mining
operations start records should be checked to determine the
location of abandoned mines which are likely to have flood-
ed.
Somewhat similar to the concept of mine flooding
is the idea of keeping out oxygen by filling the mine with
an inert gas. But little is known about this technique
other than that it would require continued maintenance to
keep the mine filled at the appropriate pressure.
Rather than flooding, most attempts to limit
oxygen have involved cutting off the air supply by shutting
all mine entrances with air seals. This was the major
technique used in the sealing program of the Works Progress
Administration during the Depression. But air seals have
been disappointing. Although they may cut acid formation
as much as 40%, the "breathing" phenomenon noted earlier
prevents any greater reduction.69 it may be possible to
locate and seal the cracks and crevices through which the
mine breathes, but subsidence of the overburden and shift-
ing around mine openings may result in the creation of new
openings.
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Seal installation and related activities often
require clearing the mine portal, sometimes at considerable
expense. In addition, entry onto the surface above the
mine, building access roads, tree-cutting and drilling may
be required. After a seal is constructed, protection against
subsequent deterioration will usually be necessary,
through periodic inspection and maintenance.
Control of water movement to and from the mine
is another method of limiting acid formation and transport.
This involves diversion of surface or ground water away
from entry into the mine, or diversion of drainage to
receiving streams that can more easily handle the load,
using such devices as flumes, tunnels and pumps. These
devices are often used to prevent flooding while mining is
actively in progress. In the Pennsylvania anthracite region,
where distorted rock strata create special problems, large
underground drainage tunnels and pumping facilities have
been constructed to dewater abandoned mines, particularly
so as to reduce the danger to active mines. Although diver-
sion techniques are of value in limiting acid formation,
oxygen control remains the most likely mechanism available
for abatement at the source.
Surface mining typically removes more of the coal
in a given area than underground mining and, if properly
reclaimed, is less subject to acid creation when mining is
completed. Stripping out the remaining coal and reclaiming
the surface may thus be the most effective method of stopping
acid formation in an abandoned underground mine.
Reduction of acid formation from active surface
mines centers around water diversion through such devices
as drainage ditches above the highwall and draining or
pumping water quickly out of the strip pit. As with under-
ground mines, however, treatment is often necessary.
Insofar as acid formation in inactive strip pits
is concerned, the availability of oxygen may be eliminated
by covering the exposed coal face with earth. As with
underground mines, water impoundments also will prevent
acid formation as long as all sulfurous material is inundat-
ed. These impoundments can be used for recreational pur-
poses and will support aquatic life.
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During active milling, it may not "be possible to
stop acid formation in refuse and spoil piles. If disposal
of the pile is not otherwise practicable, drainage treat-
ment is necessary and the primary concern is preparation of
the pile for proper reclamation afterward. With spoil
piles, this requires separation of top soil from sulfur-
itic materials and the rest of the overburden, so that the
sulfuritic materials may be buried in the cut. One of the
major problems with spoil piles from surface mines operated
before the imposition of separation requirements is that
toxic materials were frequently placed at or near the top
of the pile, since they were often the last to be excavated
before reaching the coal. With refuse bank operations, it
may be appropriate to create alternate layers of refuse
and sealing material, such as clay. Grading and compacting
may also be necessary.
To the extent a refuse bank or spoil pile can be
buried -- in a strip pit, for example -- oxygen and water
supply will be limited. With spoil piles, burying toxic
materials and backfilling the rest of the spoil is common
reclamation practice. This is harder at inactive mines
because of such factors as impaction of the pile, the
presence of logs and boulders, and logistical problems in
moving the pile, especially if it is very large. Burial
of the toxic materials from a refuse bank is more difficult;
the pyrites are more pervasive in the bank and the cost of
transporting the whole pile is likely to be prohibitive.
However, this technique has been used in some cases, and
may be particularly appropriate where an old underground
mine is being stripped out.
The most common method of protecting against acid
formation in abandoned refuse banks and spoil piles is
growth of a vegetative cover. Typically, this is preceded
by the application of fertilizers and a neutralizing agent
such as lime, and may also be preceded by regrading and the
application of a layer or layers of "sweet" soil, although
some grasses have been grown directly on a refuse or spoil
pile high in pyrites. A vegetative cover tends to use the
oxygen in the upper layer of the pile. It also prevents
erosion, thus limiting the extent to which new pyritic
materials can be exposed. Difficulties in establishing a
vegetative cover may be encountered, however, particularly
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if the pile is so toxic it exceeds the capacity of neutral-
izing agents.
Even if a vegetative cover is established, it may
take several years before precipitation which infiltrates
the pile cleans out oxidation products previously formed.
Drainage ditches may limit the access of surface and ground
water to the pile, but it is difficult, if not impossible,
to prevent the direct entry of precipitation other than
by an impermeable cover. Impermeable covers are usually
impractical, however, due to their cost and appearance.
One method suggested for reducing pyrite oxida-
tion is the application of inhibiting chemicals or bacteri-
cides. This is particularly difficult in underground
mines, where the pyrites are often hidden in cracks and
joints and new materials are continuously being exposed
through crumbling of roofs, walls, and pillars. Inhibitors
would have to be applied in vapor form and be kept up in
sufficient concentrations. Even where liquids could be
applied, as on refuse banks and spoil piles, there is
little experience to demonstrate their effectiveness.
c. Deep Well Disposal ^
Some industries have developed techniques for
the injection of waste liquids into geologicl formations
deep underground, and this has been contemplated as a
device for disposing of acid mine drainage. The drainage
would first have to be treated to remove suspended solids,
which would produce a sludge. A greater drawback is the
lack of knowledge as to what happens to waste liquids
after their injection underground, an ignorance particularly
hazardous where toxic substances are involved. Ultimately,
too, such disposal only postpones the necessity of dealing
with the problem. These factors have made deep well dis-
posal relatively unpopular as a remedy for industrial
wastes.
d. Dilution
Acid is naturally diluted in receiving streams.
One method suggested to diminish acidic effects is to
control stream flow, so as to reduce spring peaks and the
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shock of sudden slugs. Augmentation of stream flows during
low-flow periods in summer and fall due to operation of
upstream reservoirs is thought to have reduced the effects
of acidity in the Youghiogheny and Monongahela Rivers over
a 40-year period.^1 This technique requires construction
of dams or using dams built for other purposes, such as
flood control.
e. A Note on Costs
The cost of comprehensive mine acid programs for
abandoned mines is enormous. The Department of the Interior
estimated the total expense in 1969 for a national 20-year
95% abatement program at more than six billion dollars,
plus subsequent operating expenses. ^ >j>he Pennsylvania
ten-year abatement program is tagged at 935 million dollars,
plus an annual expense of 38 million dollars for operation
and maintenance of completed facilities (treatment plants,
mine seals, dams for stream flow regulation, etc.).73
A 1970 report on the proposed Slippy Rock Creek
(Pa.) Mine Drainage Pollution Abatement Project gives a
more specific example of costs on a watershed basis. This
watershed contains 13,700 acres of land affected by strip
mining, 2,700 acres of which discharge acid. Fifty-two
major and many minor deep mines have 263 known openings,
with 156 requiring hydraulic sealing. Other problems such
as refuse piles and abandoned oil and gas wells also
exist. All these sources emit eight thousand pounds of
acid daily. A program costing $9,867,000 was estimated to
be necessary to achieve 80% reduction of this acid land,
through mine and surface sealing, grouting of adjacent
strata, strip mine reclamation (backfilling to original
contour or terracing, soil treatment, planting, diversion
ditches, flumes), refuse bank control (burial in strip
pits, or grading and establishment of a vegetative cover)
and other techniques.74
Some of the difficulties in dealing with abandoned
mines have already been noted. The cost of many installa-
tions and techniques is considerably reduced when done in
the active mining process, since they may be planned and
incorporated into the operation. As noted by the Appala-
chian Regional Commission, Pennsylvania's experience in
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requiring abatement of pollution from active mines suggests
that "the coal industry, in general, can support this
additional overhead cost," although the effect on particular
firms and the make-up of the industry and market is not
known.^5
C. Erosion, Landslides and Sediment
1. Cause and Effect
Whenever vegetation or other holding covers are
removed from the earth's surface, erosion may result. The
run-off of surface waters carries loose soil, rock and
undissolved mineral matter to the receiving stream. Land-
slides also contribute these contaminants. The risk is
incurred by any of man's earth-moving activities, from
building and highway construction to farming.
The major mining malefactor is surface mining.
Spoil piles are huge mounds of erodible material. If
they are steeply graded or piled on steep slopes, the
risk of erosion is increased. Substandard access, haulage
and prospecting roads are another major sediment source,
with a rate of soil loss which may be as great as that from
spoil banks.76 Underground mining, too, can produce sedi-
ment, particularly through erosion of refuse banks. Coal
preparation plants contribute wastes such as coal dust to
a stream's cargo of suspended solids.
Where contour stripping is done, erosion, land-
slides and sedimentation become more serious as rainfall
and slope steepness increase. A survey of 25,000 miles of
contour bench revealed spoil material stacked on the outer
edge for 18,000 miles and pushed off the bench for 7,000
miles. Stabilization of spoil material becomes especially
difficult when slopes exceed twenty degrees. Water absorbed
by the loose spoil both lubricates the interface between
the spoil and original surface and increases the weight of
the spoil burden. Landslides have occurred even after an
area has been reclaimed.77 A study in Kentucky revealed
that the sediment yield from coal spoil piles was as much as
one thousand times that of undisturbed forest.78 Sedi-
mentation is particularly severe after rainstorms if
surface run-off is not adequately controlled — a condition
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found to exist on 98% of surface mined land in Appalachia.
The giant spoil ridges formed by area strip mining suffer
erosion comparable to contour stripping spoil piles, but
the effect on nearby streams and adjoining land is not as
grave because much of the sediment stays in depressions at
the site.80
The effect of erosion on acid formation in refuse
banks and spoil piles has already been mentioned. Erosion
generally creates gullies and makes revegetation and
related land uses more difficult. It also renders access
roads less useful for beneficial purposes to which they
might otherwise be put -- for example, access to recreation
facilities which might be created in reclaimed surface mined
areas or fire protection for reforested areas.8^ Landslides
cover trees and other vegetation, damage nearby land and
buildings, and block roads and streams. The sediment
contributed to streams by erosion, slides and other sources
Q O
is a serious problem throughout Appalachia.oz Suspended
solids carried by streams destroy fish habitats and
negatively affect aesthetic and recreational values. The
cost of water treatment for municipal and industrial use
is increased. When sediment settles, it chokes streams,
channels and reservoirs. The natural storm-carrying
capacity of streams near strip areas may be lowered by two-
thirds or more. Flooding increases and marshy areas
develop. Aquatic life is endangered by blanketing of
the streambed, modification of stream flows and changes
in water temperature and spawning beds. Aesthetic and
recreational values are undermined.
2. Remedies
Perhaps the first principle in the control of
erosion, landslides and sedimentation from contour surface-
mining is that the amount of spoil placed on the outer edge
of a ?oench should not exceed the capacity of the slope to
bear it. Given the possibility of extreme climactic
conditions and geological changes, it is impossible to
prevent all erosion or landslides, but general protective
measures relating bench size (including spoil) to slope
can be established. As a corollary of this principle, where
a slope is too steep to support loose spoil no mining should
be done which would result in spoil being placed on or over
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the outer edge of the bench. Although this may prevent sur-
face mining in some situations, it does leave open the use
of techniques which do not involve outside spoil placement.
The grade at which this point comes is subject to some
dispute. The Maryland and West Virginia laws sec it at
33 degrees. But soil stabilization on slopes above 20
degrees is particularly difficult and this arguably is the
proper limit.83
As with acid formation, control of surface water
is important to reduce erosion and landslides. Diversion
ditches above the highwall can channel water away from the
mining site. Devices to prevent bench drainage from infil-
trating and eroding spoil material depend on terrain,
soil and other factors. Check dams, stone rubble, culverts
or piping may be appropriate.^4 Pumping may be needed,
especially during active mining. Sedimentation ponds to
permit settling of suspended solids before surface run-off
reaches the receiving stream may also be necessary.
Proper grading and compaction of spoil materials
is another important device to limit erosion or, in the
case of area mining, to confine sediment to the mined
area. Typically this includes backfilling of the strip
pit, which also covers toxic material and limits acid
formation. A description of grading techniques will be
found in the next subsection of this chapter.
The most significant soil stabilization device
probably is the establishment of a vegetative cover.
(Artificial covers also may be effective, although, as
previously suggested, their practicality is limited.)
For this to be done most fruitfully, separation of top-
soil during active mining is useful so that it may be
replaced after backfilling and grading. The measures
previously suggested to limit the effects of sulfuritic
materials, such as application of neutralizers, may be
necessary to aid plant growth. Fertilization may also be
necessary. It is important to establish plant cover as
quickly as possible, since the risk of erosion will continue
until it has taken hold. Even where tree planting is
desired, a quick preliminary shield of grasses and legumes
may be appropriate. In a study of Appalachian sites
reclaimed by tree planting alone, more than three-quarters
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85
were found to be giving off silt, sediment and acid.
The techniques just described are part of the
basic reclamation package. As with acid drainage control,
it is important that they be considered before mining so
they can be made part of the operating plan, and that such
measures as must await completion of the extraction process
be begun as quickly as possible, although mining of the
entire site may not be finished.
Inactive mines require application of the same
reclamation techniques as active mines, but this may be
much more difficult. Previous slides and compaction
make backfilling and grading more difficult and failure to
separate toxic material and topsoil may have left a stony
spoil pile difficult to revegetate. In some cases, how-
ever, vegetation may have begun naturally in abandoned
surface mine sites and the objective may be to reinforce
this growth.^6
In cases where new mining is done next to abandon-
ed surface mines, it may be efficient to reclaim the old
site along with the new. In Maryland, for example, this
has occasionally been done with the state contributing to
the cost, where appropriate, out of the state reclamation
fund.
Limitation of sediment from refuse banks involves
basically the techniques of diversion, run-off control,
grading and planting described above. The problem of
toxicity is more grave and the special techniques described
in the previous subsection will often be necessary. For
active mining operations, special precautions may be
necessary to assure refuse piles are not too near stream
banks, so as to avoid the hazard of stream banks caving.
Where access roads contribute to the sediment
load, repair or obliteration of the road may be necessary.88
Presumably, repair would include construction of water
diversion devices. New roads for active mines must be
so constructed as to reduce the risk of erosion.
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D. Other Surface Mining; Side Effects
Surface mining destroys scenic values. Highwalls
can render mountaintops useless by cutting off access and,
along with unreclaimed pits, create safety hazards. Dust
from active operations and unreclaimed spoil piles may fill
the air and settle on nearby lands and buildings. Coal
trucks contribute to deterioration of roads and bridges.
Abandoned pits become dumping grounds. During active mining,
competing uses for the land by humans and wildlife are
limited or eliminated and may take years to reinstate.
Where the area is not properly reclaimed, the land's
productive value may be destroyed and the property tax
base undermined. Finally, the collected detriments of
surface mining in any given area may demoralize the local
population, forcing them to either suffer these indignities
or to flee.
The items in this catalogue vary in their gravity
from region to region and from mine to mine. Much coal
mining in Appalachia takes place in relatively remote
mountain areas, where the problems do not affect as many
people or create as much economic dislocation as they
otherwise might. Even in these areas, however, the problems
are very real for the people who do live or visit there and
the increasing demand for land for competing uses — as
continuing wilderness or for recreational development —
aggravates the difficulties.
The discussion in this section will focus on the
limitation of destruction of scenic values and recreational
and other productive uses. Most of the other items either
are alleviated by measures designed to treat these diffi-
culties and the others described in this chapter or are
generally beyond the scope of this study.
Destruction of scenic values and competing land
use as a result of acid drainage, erosion and landslides
has already been mentioned. More dramatic, perhaps, is
the havoc wrought by the machines themselves: in area
stripping, giant earthen washboards of 50-foot spoil
piles; in contour stripping, mile upon mile of bare high-
wall as high as 80 feet or more ringing mountains in as
many as three or four layers. According to one estimate,
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by 1967 coal mining had created 20,000 miles of highwall
in Appalachia.89 Unreclaimed spoil piles and pits also
add to the ugliness of contour-mined areas.
Surface mining necessarily destroys or limits
the use of the mined area for other purposes. The immediate
effects on human uses of the surface area are obvious. In
Appalachia, much of this area is forest. When the natural
vegetation is removed, it becomes virtually useless for
wildlife because of the elimination of food, nesting and
escape cover. Vegetation which returns naturally after
mining is finished is likely to be less efficient for these
purposes and thus produce a poorer wildlife habitat than
previously existed.^0 ^ particularly acute land use problem
is presented in those instances where surface mining
is desired in locations already devoted to human use.
Mining in parks and residential areas exemplify this
conflict, but perhaps the most striking instance is the
strip mining creeping toward the campus of Frostburg State
College in Maryland. 1
Except for outright prohibition of exploration
and mining, little can be done about the destruction of
scenic values and surface uses during active mining opera-
tions. Short of total prohibition, the amount of land being
mined can be limited so as to reduce the total negative
effect. This can be done by requiring reclamation to
begin on any mine as quickly as possible or within a very
short time after the coal is removed, or by limiting the
total amount of open acreage in a region or state at any
one time.
Where mining does take place, remedial measures
must focus upon the reclamation process. The particular
items of concern are highwall control, spoil pile and back-
fill grading and subsequent planting. Minimum requirements
necessary to reduce acid drainage, erosion and landslides
have already been noted. The following discussion centers
upon additional devices appropriate for reducing ugliness,
elimating safety hazards and restoring productive land use.
In some cases, highwalls can be screened by
planting trees on the backfilled and graded bench. But
this technique has somewhat limited value since it may take
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a long time to establish an effective screen -- as much as
60 years for an 80-foot highwall. Also, erosion would
still be a serious problem during the five or more years
it takes for the trees to establish a satisfactory root
system, and the screen would not reduce the safety hazard
presented by the highwall. ^
Reduction or elimination of the highwall is more
expensive, but also more effective. The study of reclama-
tion at the Myles Job Mine in northern West Virginia
describes six techniques and their applicability and cost
for that mine.93
(1) The spoil is bulldozed back to the highwall,
so that the highwall is covered and the slope
returned to its original contour. On steep
slopes, however, the risk of erosion makes this
unfeasible.
(2) The top of the highwall is pushed into the
bench and the spoil back toward the highwall,
ultimately reducing the highwall grade to 25-
degrees and setting the terrace grade away from
the highwall at five degrees.
(3) Material from the outer edge of the
terrace is bulldozed back toward the highwall
until the graded surface slopes away from the
highwall at an angle of three degrees. The
height of the highwall is reduced, but is not
eliminated.
(4) A modified version of the third method,
additional spoil is pushed back against the
highwall so that the slope comes away from
the top of the highwall at a 25 degree angle.
(5) The highwall is reduced by explosives to
an angle of 25 degrees.
(6) A more sophisticated version of the fifth,
the upper portion of the highwall is cut by
explosives to a 45 degree angle. The blasted
material is used to cover the lower portion, so
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that it slopes away from the highwall at an
angle of 35 degrees.
The cost of these techniques varies from $250
to $850 per acre. These estimates are based on reclama-
tion of an active mine, and they may vary not only among
techniques but also among different topographical condition
Reclamation of an abandoned mine becomes much more expensiv
Spoil piles have become more compacted and more difficult
to move; boulders and logs abound; equipment which would be
at the site if it were an active mine must be moved to it.
Thus, the cost of one technique was estimated at $400 per
acre for an active mine, but $600 per acre for an inactive
mine.94
Although the aforementioned corrective measures
are the most effective, others may be useful in some cases.
For example, a water impoundment may be desirable instead
of complete backfilling of a particular cut. Where high-
walls are left, roads to inaccessible areas may be built.
Fences can reduce the hazards of highwalls and open cuts,
and shrubbery can help provide a low screen.
The techniques which are used at any site depend
on the conditions of the contextual environment and on cost.
But apart from the minimum required to reduce or eliminate
bad side effects, they also depend on the subsequent land
use desired. In forested mountainous areas, the choice
may be limited to reforestation, although growing demands
for recreational areas may increase the alternatives. In
other areas, development for residential, recreational or
agricultural purposes may be attractive options. This is
particularly true at area mining sites, where reclamation
has generally been the most successful and varied. The
availability of different options for post-reclamation land
use suggests the need for reconciling different interests
in the surface. If surface ownership has been severed from
the mineral ownership, the operator and the surface owner
may have contradictory desires. There may be adjoining
surface owners with an interest. The public interest,
particularly in wilderness, recreation sites or wildlife
habitats, also will come into play.
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E. Subsidence95
1. Cause and Effect
Surface subsidence is a product of underground
mining. Removal of the coal takes away the support for the
overlying strata. Without support, the mine roof bends,
cracks and crumbles, ultimately filling the void and
establishing a new equilibrium in the contextual strata.
The effect may be felt at the surface in the form of
earth movements, settling, depressions, fissures and
potholes. Surface subsidence may occur for many years
after the coal has been mined, and might not occur at all.
The likelihood of subsidence depends on the size of the
void and its depth below the surface; as size increases
or as depth decreases, the likelihood and severity of sur-
face subsidence increase. Other factors which play a role
are the nature of the overburden (faults, etc.), surface
topography, effect of ground water on sub-surface rock
movement, the number of coal seams, the method and order
of extractions, and the effectiveness of supports left in
the mine.
The damage which subsidence can do at the surface
is the same as that wrought by other earth movements.
Structures of all kinds, buildings, dams and bridges, may
crack or fall; highways may fill with cracks, potholes or
bumps; railraod tracks may be thrown out of line; utility
pipes may be ruptured; natural drainage and river flows
may be affected; ground water supplies may be lost. In
addition, cracks and fissures may permit surface water
to seep into underground mine workings and increase the
opportunity for the breathing phenomenon discussed above in
connection with acid drainage. One study estimated the
cost of surface damage in western Pennsylvania in 1968 at
$295,000. The potential damage was 39 million dollars,
although this was reduced by leaving more than four
million dollars worth of coal in place to support the
surface. How much damage may yet occur due to changing
surface use was not predicted. "
Another study estimated that two million acres
of surface in this country have been subject to subsidence,
99% of which overlie coal mines. Another six
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million acres of abandoned underground workings are poten-
tial subsidence threats. In Maryland and Ohio, occurrences
have been relatively few, small and remote. In West
Virginia, they also have tended to be remote, but larger and
more numerous. As with so many other environmental side
effects from coal mining, Pennsylvania has suffered most
from this problem.97
One of the factors which has rendered the problem
so grave in Pennsylvania is the proximity of anthracite
coal mining to urban areas. When subsidence occurs in
forested, agricultural or idle lands, the effects are
relatively minor insofar as human suffering or property
damage are concerned. More than 90% of past subsidence
in the United States has been in these areas. But in
the Pennsylvania anthracite region, highly populated
centers abound. Mining either has gone on underneath these
cities and towns, or development has proceeded over prev-
iously-mined areas. Of the 90,000 acres estimated to be
affected by subsidence in the anthracite fields, 50,000
are in an urban locale.98 Although other Appalachian
coal regions generally do not have as many population
centers affected, there are some which have been or are
potential subjects, such as Frostburg, Maryland.
2. Control
One way to deal with subsidence is to remove
all the minable coal and induce immediate collapse of
the mine roof, in an attempt to clarify underground and
surface conditions as quickly as possible. Although
unacceptable in urban areas or wherever significant damage
may ensure, in remote or forested areas this may be appro-
priate (if other problems, such as acid formation are not
aggravated). Another technique, assuming the risk of
prospective subsidence exists, is to limit its effect on
surface structures by properly locating them and building
them with protective features, such as reinforced founda-
tions or leveling devices.
The traditional method of support has been
parrial extraction -- leaving coal in the form of support-
ing pillars. Artificial supports are used during active
mining to protect miners from roof cave-ins, and these can
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have the effect of preventing early cracks in the roof
which are the harbingers of later subsidence. But these
artificial supports are generally inadequate for long-
term purposes. Although pillars may be or have been the
best we have, they also are of limited value. They are
subject to weakening by natural forces, or by improper
pillar robbery. Where multiple-bed mining occurs, the
pillars must be properly positioned to be of significant
value — an unlikely result especially where the seams are
mined at different times. Partial extraction also has the
disadvantage of leaving fuel resources unmined; half or
more of the deposit may be left for the supportive function,
The study of subsidence in western Pennsylvania in 1968
reveals that 54 million tons of coal were extracted and
12.4 million tons left for support.^9
Backfilling is a term applied to various methods
of filling the cavity with mine wastes, sand, crushed rock
or other material for support purposes. Use of wastes can
ameliorate the general problem of waste disposal -- not
just from mining, but also from municipal and industrial
causes. But it may be impracticably expensive. Prepara-
tion plant wastes can only fill about 25% of the mine from
which they come; additional fill may have to be purchased
(although other wastes may be available at no cost); any
fill must be transported to the mine. Backfilling also is
thought to be only 50% effective at most in reducing sur-
face subsidence.
"Flushing" or "hydraulic stowage" has been the
most widely used backfilling technique. It is probably
the most effective and least costly. The fill material
is mixed with water and pumped into the cavity through
pipelines or boreholes, and the water is allowed to
drain out. Significant obstacles exist in abandoned
mines, because of the absence of accurate maps showing the
location of older mines, inaccessibility and hindrances to
flow resulting from cave-ins and roof falls and geological
factors reducing flow of the material through the mine or
drainage of the water out of it.
Backfilling is common in some foreign countries;
for example, it constituted 11.5% of the cost of production
at a typical English mine in 1963, 5% in Poland in 1958.101
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But it is uncommon in American coal mining. Perhaps its
most intensive use has been in government operations to
control subsidence from abandoned mines in the Pennsylvania
anthracite regions. Backfilling costs in these operations
are higher than they would be if done along with active
mining. Like control of many other environmental side-
effects, surface support techniques are most effective
and least expensive when incorporated into the mining
process.
F. Fires102
1. Cause and Effect
The exposure of coal to heat and oxygen produces
the risk of fire — a risk which has materialized in hund-
reds of mines and refuse banks. The large supply of fuel
and its inaccessibility make these fires difficult to
extinguish either by artificial or natural means. A 1963
study discovered fires in more than one hundred abandoned
underground mines and coal outcroppings, and in more than
440 coal refuse banks in the northern Appalachian Region.
This included 106 mine and outcrop fires and 368 refuse
bank fires in the four-state region under study here:
Maryland, Ohio, Pennsylvania and West Virginia. About
three-fifths of the refuse bank fires were at abandoned
mines. Many of these fires had burned for years, some
for decades. One fire had been burning or smoldering
since 1884, foiling several attempts at extinguishment.
These fires may be caused by human carelessness
or intent, by spontaneous combustion or by occurrences such
as forest fires and lightning. The dumping and burning
of trash is a common source of fire at old strip pits and
mine openings. Spontaneous combustion often ignites
refuse banks. Campfires built on or near refuse piles
and even intentional burning to obtain "red dog" for fill
and road and driveway surfacing have also played the igni-
tion role. Finally, fires may spread from refuse bank
to coal seam, or vice versa.
Fires pollute the air with smoke and noxious
gases, perhaps their most significant side effect. They
also are safety hazards and, when they occur in coal seams,
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they destroy coal reserves. Underground mine fires can
cause subsidence by burning out support.
Three-fifths of the refuse bank fires noted in
the 1963 survey were within a mile of communities of one
hundred or more people. Some fires are close to large
cities. In 1966, for example, some Scranton, Pennsylvania
residents were forced to flee their homes when carbon
monoxide ascended from an underground mine fire.
2. Control
Although a coal mine or refuse bank fire may be
impossible to stop with present technology,^03 several
techniques have been developed with varying degrees of
success. Methods to combat mine and outcrop fires include
stripping out th e burning material and backfilling the
pit; covering the material with several feet of incombustible
matter or building an incombustible fire wall around the
burning material. Methods for fighting underground fires
also include construction of an underground seal or barrier
and sealing surface fissures.
Refuse bank techniques have included using water
to extinguish and dislodge burning refuse and transporting
the cooled material to a disposal site; flooding; flushing
limestone through boreholes into the pile; and covering the
pile with an incombustible material such as dirt, clay or
artificial sealants.
The proper control technique for fires in coal
beds and refuse banks depends on the nature of the parti-
cular fire, its source and its surroundings. Relevant
factors include the shape of a refuse bank; access to the
site of water, other estinguishing material and equipment;
the availability of a disposal site for quenched refuse
pile materials; the value of the reclaimed land, and the
topographical and geological context.
Perhaps most important, particularly for refuse
piles, is proper planning and construction of the pile
during active operations — a condition not enjoyed by
most piles abandoned in the past. Suggestions for proper
design include location in an area where the fresh air
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supply is reduced, as in a ravine; limiting air entry
and flow through the pile by not segregating sizes of
refuse, by putting the refuse down in layers and compact-
ing each layer, by crushing large pieces of refuse and by
sealing exposed faces of the refuse pile with clay; divert-
ing water from surface drainage, and clearing combustible
material such as vegetation from the site. The bank should
be properly graded and sealed, and cover such as vegetation
added to reduce erosion. Fencing and posting notices may
be necessary to warn peopl of the risk of ignition, and
regular inspection and maintenance is needed.
Doing away with the refuse bank is probably the
most effective way of meeting the problem. Where cost and
technology permit, burial in abandoned strip pits or under-
ground mine cavities may be appropriate.
G. Some Common Factors
The environmental side effects discussed in this
chapter differ in many ways. But they also are closely
related. Subsidence may contribute to acid drainage. Sur-
face mining may clear up an acid drainage source. Back-
filling may both reduce subsidence and eliminate a refuse
bank as a source of drainage, erosion and fires. The
severity of each problem and its control depend on the
specific circumstances of each mine. Mine drainage may be
highly acid in one situation, alkaline in another. Ero-
sion and landslides may be unpreventable in some kinds of
surface mining. Subsidence depends upon a variety of
geological and topographical considerations. In addition,
although research into abatement techniques is proceeding
at an ever-quickening pace, we do not yet have effective
solutions to all of the problems. Measures needed at one
mine may be obsolete tomorrow. The importance of flexi-
bility in governmental controls is apparent.
The need for accurate maps is clear — not just
for abandoned mines, but also as a readily available record
of present and future operations. Also clear is the impor-
tance of incorporating control techniques into the active
mining process, which suggests that pre-planning these
techniques and building them into the operation is
essential.
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Finally, abandoned operations pose, on the
whole, the most difficult and expensive problems. Opera-
tors of active mines ameliorate environmental side effects
to some extent, but regulation is essential to ensure
that their efforts are sufficient.
Table 3, which follows, identifies the proport-
ional acreage affected by surface mining for coal relative
to other minerals in the four subject states.
TABLE 3
ACRES DISTURBED BY SURFACE MINING BY COMMODITY,
AS PER CENT OF TOTAL (1965)
Coal Stone Sand and Clay Iron Other
Gravel Ore
Md.
Ohio
Pa.
W.Va.
Source:
U.S.
ment
8.7 8.7 75.0 4.8 x
77.0 7.6 10.0 3.7 1.5
81.5 6.6 6.4 2.8 2.4
98.0 1.5 .2 .2 .1
Dep't. of Interior, Surface Mining and Our
(1967) .
3.2
.2
.1
X
Environ-
Totals may not be 100% due to rounding.
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Ill
COAL RIGHTS AND THE PROPERTY SYSTEM
The property system is the fundamental legal
mechanism for allocating rights in resources. The system's
treatment of mineral resources is complicated by the
functionally changing nature of the resources themselves —
coal is a subjacent geologized stratum, but concomitantly
due to its value once extracted, it can be bought and sold
as a commodity. Accordingly the property system has
developed a body of rules to deal with the special problems
or rights in extractable minerals.
A. Rights in Coal
At the base of the mineral right structure lie
two postulates: (1) presumptively, the owner of the
surface also owns the minerals below;* (2) but the owner
of the surface may convey the minerals, so that the owner-
ship of surface and minerals are in two different persons.
Like the surface, minerals in place are "real estate,"105
and if severance occurs, the ownership interests created
are comparable to interests in adjoining land. ("Severance"
is used here to describe the split in ownership of sur-
face and minerals, but not the extraction of th e minerals.)
Severance need not be by a conveyance of the minerals; it
also occurs when the owner of an unsevered estate conveys
the surface and reserves or excepts the mineral interest
to himself. There also may be more than one mineral
estate in a given tract of land, since different minerals
or even different veins of the same mineral may have
different owners. In some sales of minerals in place,
the vendor retains the possibility of obtaining an interest
in the minerals at some future time; he also retains an
interest in the mined-out area after the mineral is
exhausted.105
The owner of the minerals may extract them him-
* According to the ancient common law maxim: Cujus est
solum, ejus est usque ad coelum et ad inferos. (To whomso-
ever the soil belongs, he owns also to the sky and to the
depths.)104
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self, whether or not he also owns the surface. If sev-
erance has occurred, the mineral owner usually is protect-
ed by express or implied rights to use the surface to the
extent necessary for mining, preparation and waste dispos-
al, and the surface owner is ensured a right of support
(although this has frequently been waived in the deed).
The question whether stripping rights can be implied from
a. general grant of mining rights will be discussed in the
next chapter.
Although the mineral owner may engage in extrac-
tion, he often bestows this privilege on someone else.
The labels applied to operating rights short of outright
sale vary considerably, as do their nature and consequences,
They may be profits, easements, licenses, or leases, for
short terms or long, for minimum royalties or not. The
most common form is the lease. One writer has noted:
"Coal leases are so different in their characteristics
that no general definition can be formulated which will
include all possible and desirable features. ^ Still,
some generalizations can be made. The lease usually grants
the right to mine for a specified period of time in return
for a stated royalty (payment per ton mined or sold) with
a minimum annual royalty often required. The lease usually
also contains clauses concerning development and marketing,
use of the surface, surrender or forfeiture, and termina-
tion by the lessor.108
Although the old coal leases were often for
indefinite terms (e.g., until all merchantable and mine-
able coal is mined) or for long terms (e.g., 99 years), by
1915 the typical term was rarely more than 20 years.109
Modern leases typically are for a fixed period with right
of renewal, subject to earlier expiration upon exhaustion
of the coal which is commercially mineable and merchant-
able.1!0
Many words have been shed over the distinction
between a lease and an outright sale. According to one
writer:
"The basic function of a coal
lease is to provide a means
whereby the owner of the coal
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may procure its extraction
and sale upon a deferred
purchase money basis at a
price usually far greater
than could be obtained on
a sale in gross or by the
acre. Ordinarily non-
corporate owners of coal are
incapable of financing the
erection and operation of
elaborate and costly produc-
tion facilities. On the
other hand, the lessee
usually desires to pay for
the coal as and when it is
mined, financing the cost
out of the proceeds of the
sale of the product. "HI
But clauses providing for periodic compensa-
tion and a limited term, commonly associated with the
lease, have not precluded a judicial finding that a
document represents a sale. The "Pennsylvania doctrine"
is the most extreme in this regard. As described by the
Pennsylvania Supreme Court in 1959, the test of a sale of
coal in place is:
"(1) the right had to be
exclusive in the vendee;
(2) to mine all the coal;
(3) and he must have paid
either a stipulated consid-
eration, or have been
compelled to mine or what
is the same thing, pay for
all the coal if not mined. "H2
The third qualification need not be express, since the
law implies "a covenant to mine and remove the coal with
• 111
due diligence" if the agreement is silent on this point.
Typically, however, coal leases specify the lessee's duty
of development, particularly by requiring payment of a
minimum annual royalty.H4 guch a provision satisfies the
third condition.
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The net effect of a sale is to transfer title
to the coal in place to the vendee; the lease leaves title
in the lessor. But although the purchaser has title to
the coal, his interest under the Pennsylvania doctrine may
be quite limited. In one case, the amount of time he had
to extract the coal was only ten years. Despite the fact
that the transfer in that case constituted a sale, the
purchaser was not entitled to remove the coal after the
term ended . His "fee simple" estate in the coal was
determinable, with the ten-year term constituting the
limitation. The vendor's "possibility of reverter" in
the coal materialized when the term ended with coal
remaining; the vendor was then re-vested with his estate
in the coal.11^
The sale-lease distinction has been important
in the past because of the different interests each
method of transfer creates in the parties involved.
This has affected such questions as the passage of the
interest on death, whether excess royalty payments can be
set off against future obligations after a renewal of
the agreement, whether the lessor-vendor has an interest
subject to execution, tax liabilities and adverse posses-
sion. H7 Most important for present purposes is the
principle that a leasehold interest may be lost by aban-
donment, whereas a fee simple interest may not.11^
When the fee simple is limited by time, as is possible
under the Pennsylvania doctrine, the distinction is of
little significance once the term has ended; whether
created by sale or lease, the lessee-vendee's interest
will terminate at the end of the period. The same is true
where exhaustion of the minerals, without more, terminates
the lessee-vendee's interest. But if neither of these
factors is present, the vendee may still have an interest
in any remaining coal in the mine if his interest was
created by sale, whereas the lessee may have surrendered
his interest by abandonment if created by lease. The
test of abandonment in this context is an intention to
give up the rights involved, combined with acts (or a
failure to act) reflecting that intent. Thus, in Chandler
v. French, the lessor was held entitled to all the miner-
als previously leased when his lessee failed to begin
mining for a reasonable time (four years there) after the
date of the lease.119 Aside from abandonment, the sale-
56
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lease distinction arguably is relevant to the liability
of the lessor-vendor. This will be discussed in the next
chapter.
Refuse discarded by the miner initially belongs
to him as personal property. However, this is capable of
be:_nq abandoned, and the intention to discard which is
oc.vuioiiiy associated with refuse makes a finding of aban •
-] op\
dcriment likely. This refuse may become the property
cf the surface owner through appropriation or accession.
Disputes here have centered around who is entitled to
rr.inerals of value which have been discarded along with
191
other refuse. ^ The sale-lease distinction is not of
importance.
Note also should be taken of the rights of sur-
face owner and mineral owner or lessee in the cavity
created by mineral extraction. Disputes here have
centered primarily around use -- for example, the right
^.•j use the passageway to carry minerals extracted from
adjoining property. In the absence of agreement to the
contrary, the mineral owner (but not the lessee) retains
the right to use the cavity, at least as long as the
Yiinerals are not exhausted and he has not abandoned the
iniiie. The courts are divided on the limits to the min-
or 1 G" Tier's interest. ui a ay case, although there have
joeen suggestions to the contrary, it seems clear that
upon exhaustion of the minerals the cavity is "owned" by
the surface owner.--2 2
B. Survey of Ownership Patterns
The various ways in which the property system
can allocate coal rights has now been sketched. In order
tc discern the actual pattern of surface and mineral right
ownership a survey of government and company officials in
Maryland, Ohio, Pennsylvania and West Virginia was conduc-
ted. Although detailed statistical information proved
unavailable a general picture can be developed from the
responses.
As might be expected, coal mining historically
has been done chiefly by operators who did not own the
surface. Their mineral interests have taken the form
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either of fee title or leasehold; the former constitu-
tes a significant proportion, particularly where the
Pennsylvania doctrine of identifying sales is followed.
Thus, it was suggested that most coal mines in western
Pennsylvania were owned and operated by someone other
than the surface owner. This could be expected because,
until World War II, most coal mining was done underground,
and control over the surface was necessary only to the
extent required for the mining and processing operation —
£>r construction of shafts, access roads, and processing
plants, taking timber for supports, refuse dumps, etc.
This control was obtained through express or implied
rights in the deed or lease, and purchase of more of the
surface was unnecessary. Moreover, in some instances
mineral rights could be acquired quite cheaply from surface
owners who wanted to continue their own use for residential
or agricultural purposes but had little interest in or
knowledge about the hidden wealth below. ^3 Another
factor contributing to mineral severance was the expedient
of reserving or excepting mineral rights whenever land
was sold, a common practice in such areas as western
Maryland.-^24 The vendor of the surface may not have known
whether minerals existed in his property but he wanted
the windfall if they did. If minerals were found he would
usually se.l 1 or lease the minerals to a company which
had the cc-~:.tal or expertise to extract them.
Even where strip mining was contemplated, pur-
chase of the surface was not particularly common until
very recently. In those states where mineral deeds were
liberally construed to give stripping rights, purchase
of the surface was unnecessary if the minerals could be or
had been acquired without it. If the surface owner's
consent had to be obtained to rip open the land, a
royalty payment often sufficed.
Today it is more common to find coal operators
purchasing both surface and mineral rights. More coal is
mined by stripping, and operators are finding that reclama-
tion (whether legally required or not) can produce land
valuable for other purposes when mining is completed. In
relatively flat areas, for example, some coal companies
are turning reclaimed lands into farms or pastures. Pur-
chase of the surface also relieves the mine operator from
58
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the aggravation of dealing with the surface owner.
As coal operators find it more appropriate to
purchase the surface, surface owners are becoming less
interested in selling. Where the surface is desirable for
the non-mining uses to which it may be put, and reclama-
tion is required, both coal operator and surface owner may
wish to seize the advantage. This has been mentioned
particularly with regard to such areas as western Mary-
land, wh^re the land has increasing value for recreational
purposes. The surface owner still profits from the coal,
at least if strip mining is done, since he may require a
royalty for use of the surface during mining operations.
When mining is desired in areas already devoted to valuable
surface use, such as residences, it also has been diffi-
cult for operators to acquire surface rights because of the
acquisition costs.
A related question is the degree to which owners
of severed mineral rights lease the operating rights to a
third party, and the degree to which lessees sub-let
their operating rights. The officials surveyed believed
such leasing or sub-leasing has been relatively uncommon.
Typically, the lessee or the owner of severed mineral
rights operates the mine himself.
Implicit in these findings is that history and
geography affect the extent to which ownership or operat-
ing rights have been separated from the surface. The old
transfers and transfers in areas where stripping was
unlikely often created severed interests.
C. Requirements of Owner's Consent
for Governmental Activities
One of the obvious problems that the diffusion
of ownership rights in coal present to administrators
seeking to abate mine drainage or to reclaim surface areas
is that it complicates procurement of the requisite con-
sent of the owners.
The kind of consent needed depends on the
kind of rehabilitation proposed. It may merely take the
form of protection against future claims of trespass —
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for example, where entry is needed to determine the source
of acid drainage, the condition of a mine or refuse bank,
or monitoring and maintenance activities, and such entry
is not authorized by statute.*
•The agreement of the owner or possessor of the
surface, the mine or adjoining land may be heeded for
entries of a more permanent or traumatic nature — for
example, construction of access road, drilling, removal
of timber, earth-moving and perpetual access rights-for
inspection and maintenance.-^26
Finally, acquisition of more substantial prop-
erty interests may be necessary -- for-example, where the
government wants to construct a treatment plant or build a
park. The surface is primarily of concern in these cases,
although it may;also be appropriate to acquire'mineral
rights-. '• ' •';;.•
Where property interests such as easements and
fee title must be acquired, eminent domain powers may be
called into play. If owners' are unknown, damages may
typically be paid into court and the acquisition consumat-
ed. :But these formal procedures may be more cumbersome
than private negotiations with the owners.
Many of the officials contacted in the survey
thought that identification of owners of mining properties
is not generally very difficult through title records,
and tax records in particular. In situations where
owners have left the land, unpaid taxes have often result-
ed in tax sales which re-established title in an identi-
* Some statutes do authorize such entries, e.g., W.Va. '
Code Ann. sec.20-7-4(1970). Even statutory authority can-
not prevail over the Federal Constitutional^admonition ' •
against unreasonable warrantless searches. But this pro-
hibition would seem to be inapplicable-to inspection of
open lands, as would typically be involved here.' As Jus-
tice Holmes said, "the special protection accorded by the
4th Amendment to-the people in their 'persons, houses,
papers and effects' is not extended to the open fdelds."125
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fiable person. Nearby owners and possessors often can
supply relevant information when the records are incom-
plete.
Still, many instances do occur where responsible
individuals cannot be found. Some pollution abatement
officials complained of delays of up to two years in find-
ing owners. These delays usually occurred in connection
with rural lands which were abandoned by their owners years
ago, with no intervening tax sales to re-establish owner-
ship. .Since remote lands often are of little surface
value, particularly if strip mined, the absence of a tax
sale is not hard to explain. (
( , Hence the problem of procuring consent for
abatement and reclamation work appears primarily a matter
of delay. In most instances property records are suffic-
ient to determine the owners of surface and coal rights.
Even in those instances where the property system has so
broken down that owners cannot be found, the government
may resort to a tax sale to clear title. But in either
case there is slippage in the system. Negotiation, con-
demnation procedures, tax sale — all consume time that
may impede the desired abatement or reclamation schedule.
This has led to the.suggestion that summary procedures be
statutorily developed which permit government agencies
timely access, but at the same time protect the land and
coal owners against the taking of or damage to their
rights through prior escrow payments into court.
The property system has developed an elaborate
calculus for allocating rights in coal and coal lands. The
patterns of ownership which have developed under the sys-
tem are diffuse and dynamic, with a present trend toward
combined ownership of coal and surface rights in mine
operators. Breakdown in the system which makes it diffi-
cult to determine private ownership rights on occasion
have delayed government efforts to remedy side effects
from coal mining. Other consequences which follow from
the various ownership patterns are developed in the
succeeding chapters.
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IV
COMMON LAW RESPONSES TO COAL MINE SIDE EFFECTS
Law suits are the historic method for resolving
disputes over the use of resources. Coal mines have
created such disputes with reference to both water
quality and land use. Contestants are characteristically
the mine operator on the one hand, and an owner of neigh-
boring land, the owner of surface rights of the coal
land, or a governmental body on the other.
A. Water Quality
Coal operations produce acid mine drainage.
This drainage has a deleterious effect on receiving waters
manifested by increases in acidity, hardness, iron and
manganese. At common law, courts used the property system
and the doctrine of nuisance to resolve the resulting conf-
licts. Each owner of land abutting stream water was said
to have a riparian right to use such water so long as he
did not interfere with its reasonable use by other land-
owners. It was said to constitute an actionable nuisance
for anyone to make discharges into a stream which would
interfere with its reasonable use by others. But a rule
of "reciprocal reasonable use" is too high on the abstrac-
tion ladder to be of much help in actually predicting how
disputes will be resolved.
The actual working of the system is better
illustrated by examples from the four subject states.
The Pennsylvania experience provides a good illustra-
tion of changing values and judicial adaptation. In the
notorious 1886 case of Pennsylvania Coal Co. v. Sanderson,
the Pennsylvania Supreme Court displayed the classic
"robber baron" mentality. In response to a complaint by
a downstream landowner of acidic water, dead fish and
corroded pipes the court said:
"...The defendants were engag-
ed in a perfectly lawful busi-
ness, in which they had made
large expenditures, and in
which the interests of the
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entire community were concern-
ed. They were at liberty to
carry on that business in the
ordinary way, and were not,
while so doing, accountable
for consequences which they
could not control. As the
mining operations went on,
the water, by the mere force
of gravity, ran out of the
drifts, and found its way
over the defendant's own
land to the Meadow Brook.
It is clear that for the
consequences of this flow,
which, by the mere force of
gravity, naturally, and with-
out any fault of the defen-
dants, carried the water into
the brook, and thence to the
plaintiff's pond, there could
be no responsibility as
damages on part of the
defendants "127
The court has been in rhetorical retreat ever since. In
1913 the Sanderson rule was viewed as an "extreme excep-
tion to the general rule" and held not to apply either to
mine water pumped to the surface, or to discharges into
otherwise unpolluted streams.128 In 1924, Pennsylvania
R. Co. v. Sagamore effectively dispensed with the Sander-
son rule by determining that:
"No language used in that
opinion can be tortured with
an indication that waters of
the commonwealth can be pol-
luted by its mines where the
public is affected....It has
always been under our law a
nuisance to pollute a stream
from which the public gets
its water."129
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Since as a practical matter virtually all flowing
water is subject to public use, Pennsylvania seems to have
joined West Virginia and Ohio in a case law which nominally
makes coal producers financially responsible for impairing
the quality of stream water. Ohio law is exemplified by
trie case of Straight v. Hover. There the defendant separ-
ated salt water from oil extracted on his land. He allowed
the salt water to run off and. pollute a stream, when sued
by plaintiff, he argued that he was using the most modern
technique available and still could not prevent the run
off. In addition, he claimed that the stream was part
of the natural drainage basin of the area and that -uc'r
run off was therefore inevitable. The court answered:
"However numerous may be the
persons who engage in mining
for coal and petroleum, how-
ever laudable may be their
undertakings, these are but
private enterprises institut-
ed and conducted for private
gain which may be acquired
only with due regard to the
rights of low proprietors...."130
The West Virginia attitude is mirrored in Day v. Louisville
Coal & Coke_Cg. There the defendant had deposited large
quantities of tailings and other waste in a stream that
was washed down onto plaintiff's land. Aside from render-
ing the stream unfit for agricultural and domestic uses,
the mine refuse also covered 50 acres of plainti±±'s
farmland and 40 acres of bottom. The court rejected the
rriner's contention that a verdict against mining would be
"subversive of great public policy." The court equated
the maxim Sic utere tup ut alienum non laedas* with the
Golden Rule and said:
"If one up the stream, in his
work, be they ever so Law.ul,
honorable , and necessary for
* "Use your own property in such a manner ?.« not to
injure that of another."
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private weal, do thereby in-
jure the land of that owner
further down by unlawful in-
vasion of it, by casting upon
if things damaging it, or by
polluting the purity of its
waters, rendering it unfit
for the owner's consumption
as it passes through his land,
the man up the stream must
answer in damage."132
Maryland alone among the four states has no
cases dealing with the financial responsibility of coal
operators for mine drainage. But general language from
related cases would seem to put it in line with Pennsyl-
vania, West Virginia and Ohio. In Jessup and Moore
Paper Co. v. Zeitler, where a paper mill polluted a stream
interfering with farm operations downstream, the Maryland
Court of Appeals said:
"The right of riparians to the
enjoyment of a stream in its
natural flow, quantity and
quality has long been recog-
nized as a fundamental prin-
ciple of law. Every riparian
owner is bound to use this
common right so as not to
interfere with an equally
beneficial enjoyment of it
by others."133
There are at common law a variety of legalistic
doctrines which may limit the mine operators responsibility.
Some courts have distinguished between underground streams
and percolating waters. Pursuant to the so-called English
Rule, while landowners are limited to a reasonable use of
underground streams they have absolute ownership of per-
colating waters (water oozing or seeping through the soil
without a defined channel). Application of the English
Rule could preclude recovery for acid contamination of
water oozing next door.134 Pennsylvania adheres to the
English Rule, but courts in Maryland, Ohio and West
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Virginia have adopted the so-called American Rule (limit-
ation to reasonable use of percolating waters).135
In addition arguments are sometimes made that a
right to pollute can be acquired through long usage, and
that use of the best engineering techniques available to
avoid pollution functions as a defense.1^6 These argu-
ments have met with little, if any, success in the four
subject states.
B. Land Use
Coal operations create two typical forms of land
use problems. Early disputes involved responsibility for
cave-ins. More recently, development of sophisticated
surface mining techniques has created questions as to the
responsibility for slides and topples.
Common law has responded to these problems in
two ways. First, to the extent some privity relationship
can be established, the conflict may be resolved by con-
struction of the agreement between the disputants. For
example, if the owner of a parcel of land (or his predeces-
sor in title) transfered mineral rights to the coal opera-
tor (or his predecessor) the correlative rights of the
parties may be established by interpreting these convey-
ances. Second, in the absence of a privity relationship
(or in the absence of any manifest expression of intention
in the conveyance), the conflict may be resolved according
to common law doctrine.
1. Deed Interpretation
Most of the problems of interpretation relate
to conveyances severing the coal rights from the surface
rights. The disputes have centered around whether owners
of mineral rights are entitled to take coal by strip
mining.
In the early 1900's in Appalachia severance of
mineral rights from surface rights was wide-spread. Since
at that time surface mining had little currency, the con-
veyances employed did not explicitly deal with the even-
tuality. Hence, there have been recurrent disputes as to
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whether the general language used authorizes surface
mining. The problem is particularly acute since deep
mining may be compatible with agriculture or residential
use while strip mining decimates the surface.
Nominally, these disputes are resolved according
to the intention of the parties as manifested by the
language of the conveyance. But interpretation of these
"broad form" deeds has varied from state to state. West
Virginia was the first state to deal with this problem.
In West Virginia-Pittsburgh Coal Co. v. Strong, decided
in 1947, the coal operator had rights to:
"...enter upon and under said
land with employees, animals
and machinery at convenient
point and points, and to mine,
dig, excavate and remove all
said coal, and to remove and
convey from, upon, under and
through said land all said
coal and the coal from other
land and lands and to make
and maintain on said land all
necessary and convenient
structures, roads, ways,and
tramways, railroads, switches,
excavations, air shafts,
drains and openings, for
such mining, removal and con-
veying of all coal aforesaid,
with the exclusive use of all
such rights of way and privil-
eges aforesaid, including
right to deposit mine refuse
on said land and waiving all
claims for injury or damage
done by such mining and remov-
al of coal aforesaid and use
of such privileges."137
The court determined that this language did not give the
operator the right to strip mine and the landowner retain-
ed the right to the surface undisturbed.
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The Ohio Court of Common Pleas was confronted
with the problem in 1954. There the conveyance granted
to the coal operator rights
"...of ingress, egress, regress
and of way and other necessary
or convenient rights and priv-
ileges in, upon, and over the
above described premises for
the purpose of mining, remov-
ing, developing, boring for,
refining and taking away said
coal, oil, gas or any other
minerals contained therein or
thereon. Also the privilege
of removing under and through
the same any oil, gas, coal or
other minerals which are owned
by or which may be hereafter
acquired by the said grantee
herein without being in any
way liable for damage or in-
jury which may be done to the
above described premises or
to any waters or water course
therein or thereon, by reason
of the mining, removing, and
taking of said coal, oil,
gas or other minerals."138
And the court determined that surface mining was not
authorized.
In 1953 the Pennsylvania Supreme Court faced
the same problem. In Rochez Bros. Inc. v. Duricka, the
conveyance gave the coal operator:
"...the right to mine and carry
away all of said coal, and with
all the mining rights and priv-
ileges necessary or convenient
to such mining and removal,
draining and ventilating of
the same, and without being
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required to provide for the
support of the overlying
strata, and without liability
for injury to the said sur-
face or to anything therein
or thereon by reason of the
mining and removal of all
of said coal or the manu-
facture of the same or other
coal into coke, or other
products, at such places as
may be selected by said
second party, its successors
or assigns. "139
The Pennsylvania court likewise decided that this grant
did not authorize surface mining. In reaching its deci-
sion the court noted that the surface estate was used as
a farm and:
"The farmer may plough, plant
and prune while miners work
underneath his growing crops.
But strip mining drives him
from his fields as effective-
ly as a tornado."14°
Subsequent cases broadened the base of this
decision by emphasizing that "the utility of quality of the
land involved is not a determinative factor" and, in view
of the surface destruction wrought by strip mining, the
burden rests on the person who wants to perpetrate this
violence "to show some positive indication that the
parties to the deed agreed to authorize practices which
may result in these consequences."-^!
But the opposite conclusion is just as readily
reached. The Pennsylvania court in 1954 was faced with
the following language:
"...all the coal, oil, natural
gas, and other minerals, in
and under the surface of said
land; together with the exclu-
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sive and perpetual right of
ingress, egress and regress
into and upon said lands, to
examine, search for, mine,
manufacture and prepare
said coal, oil, gas and other
minerals for market; to take,
remove and transport the
same therefrom as well as
coal, oil, gas and other
minerals from other lands; to
build and construct shafts,
drafts, air shafts, bore holes,
gangways headings, roads,
and drains in, through, upon
and under said surface; to
pump water from the mines and
run same on said surface; to
locate and erect such fans,
engines, machinery, buildings,
shafts, drafts and other
structures, with the neces-
sary curtillage, as may be
necessary for the convenient
use, ventilation and working
of the mines and works
appurtenant thereto and to
manufacture coke; to use
sufficient and convenient
portions of surface to deposit
dirt and waste from the mines,
and for the location and
erection of miners' dwellings,
tenements, offices, stores and
other buildings; without any
liability whatsoever for
damages to said lands or for
injury to or diversion of
waters flowing in through,
under and upon said land."142
It determined that the owner of these mineral rights was
entitled to strip mine, emphasizing that the coal could not
be extracted by any other method. It distinguished the
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previously discussed Rochez case on the basis of the differ-
ing language and on the grounds that in Rocnez rich agricul-
ture land was involved while here the surface was mount-
ainous and had been acquired by the state at a nominal
price. As suggested above, however, later cases de-
emphasized the latter factor.
In 1968 the Maryland court was faced with this
recurrent problem in Department of Forests and Parks v.
Georges Creek Coal & Land Co.. Here the coal operator
had rights to:
"...all the coal, clay and
other minerals, and all the
oil and gas underlying said
land hereby conveyed, together
with the right to enter in,
upon and under said land and
to mine, excavate and remove
all said coal, clay and other
minerals, and said oil and
gas, and to transport and
haul the same to market; and
also the right to enter in,
upon and under said lands
and to transport and haul the
coal, clay and other minerals
and the oil and gas from
other lands and under and
over and across said land;
and also the right to enter
in, upon and under said land
and to make, construct and
maintain road ways, excava-
tions, tunnels, drain ways,
tracks, pipe lines, power
lines, tipples, and any and
all other like structures
and to do any and all things
necessary or convenient for
the mining and removing of
said coal, clay and other
minerals and said oil and gas
and the coal, clay
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and other minerals, and the
oil and gas from other lands;
and also the right to enter
in, upon and under said
land and to construct and
maintain poles, towers and
wires and other like equip-
ment for carrying electri-
city for any purpose whatso-
ever; all without being in
any manner liable for the
breaking or subsidence of
the surface of said land
or for any injury or damage
to the overlying surface
thereby or to anything
therein or thereon by the
exercise of the rights
hereby excepted and reserved,
whether or not the same be
caused by or due to the
negligent manner in which
said mining operations are
conducted or said rights
are exercised. "-1-43
The Court determined that these rights included the right
to surface mine. In mitigation of the Maryland result is
the fact that, as the court pointed out, the conveyance in
question was made after rudimentary efforts at surface
mining were in practice and explicitly authorized "exca-
vation, " thereby leaving the door open for an opposite
result when faced with an older or less explicit convey-
ance .
144
In this potpourri of cases the intention of the
parties creating the mineral rights seems for the most part
illusive. Since the severances typically occurred before
surface mining techniques had become prevalent the language
is not written with these techniques in mind, but the
language used is typically generic and abstract enough to
embrace any coal-taking operation. Hence, differing
intentions can be extrapolated depending on the point of
departure, leaving a good ^eal ;.f roon for judicial
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predilection and policy-making. The West Virginia, Ohio
and Pennsylvania courts have proved predisposed towards
surface preservation, although the Pennsylvania courts
have vacillated. The Maryland court in the one case
presented to it favored the mine operators prerogative.
2. Common Law Doctrine
There is more hard law relating to the responsi-
bility of miners for operations which result in cave-ins
or landslides. As illustrated in the quotations from the
deeds above these problems too may be dealt with by agree-
ment. Correlative support obligations can be expanded or
contracted through agreement.1^5
For the most part, however, support disputes are
resolved by common law doctrine. The common law of all
four states begins by stating that landowners have a right
not to have their land toppled because of excavation on
adjacent tracts (lateral support) nor to be collapsed by
virtue of undermining (subjacent support).146 All four
states have on occasion imposed financial responsibility
on operations which have so flawed the geological make-up
of nearby land. The flaws have varied from sink-holes,
to fissures, to landslides, and liability has been justi-
fied on the theory that mine operators are liable without
any demonstration of fault if it can be proved that their
operation impaired the integrity of the soil.
Responsibility of mine operators becomes more
problematic when the surface owner seeks to recover for
damages to buildings. Several generalizations can be made
from a rather inconclusive and inconsistent body of case
law. First, in all four states the courts have said that
artificial structures are not entitled to the same absolute
right of support extended to soil in its natural condi-
tion. 14"7 Second, the courts appear more inclined to prot-
ect buildings from damages resulting from cave-ins than
from damages occasioned by surface excavation. This
inclination is expressed in various ways: in Pennsylvania
and West Virginia by decisions which, despite protestations
to the contrary, provide a functionally unlimited right to
subjacent support for buildings;-1-4® in Ohio by a rule which
makes coal operators prima facie liable for undermining
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buildings (such liability only to be avoided by a showing
that the subsidence would not have occurred but for the
weight of the building);149 in Maryland by a case that
creates a presumption of negligence where a building is
undermined as a result of deep mining. If these
special doctrines fail to justify imposition of liability
then the operator of the deep mine is still potentially
liable under tort law for negligence.
Negligence is likewise used to determine liabili-
ty for surface excavations which damage buildings. Under
ordinary tort principles the question would turn on whether
the mine operator was using reasonable care (complying
with established engineering standards) in making the
excavation. Comment 819(f) to the Restatement of Torts
tries to particularize by listing conduct that under
some facts and circumstances may justify liability:
"...it may be negligence: (1)
(1) to excavate sand, gravel,
loam, or other friable soil
otherwise than in sections;
(2) not to furnish temporary
support by shoring; (3) to
fail to give timely and suf-
ficient notice of the propos-
ed excavation; (4) to main-
tain an excavation under such
conditions or for such a
length of time as to expose
the adjoining lands with
artificial additions to un-
reasonable risk of harm as by
exposure to rain, frost, or
weathering; (5) to make use
of improper instrumentalities
or improper use of proper
instrumentalities; (6) to
employ incompetent workmen;
(7) to neglect to ascertain
in advance whether the excava-
tion as planned is likely to
expose adjoining lands with
artificial additions to un-
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reasonable risk of harm...."151
Not surprisingly the courts have applied these broad
theorems with varying results. Maryland courts have
determined that merely leaving an excavation open for
several months constitutes negligence, while Ohio courts
have decided that it does not;152 West Virginia courts
have decided that failure to build a retaining wall when
excavating a 45 degree slope justifies a finding of
negligence, while in Pennsylvania the court has expanded
the negligence notion to include excavations which could
reasonably have been anticipated to impair a neighboring
building (even if correct engineering procedures are
used).153 Ohio has removed some of these vicissitudes
with a statute which makes excavators absolutely liable
for all damages resulting from excavations greater than
nine feet.154
The discussion so far depicts a static body of
law with prescribed rights of subjacent and lateral support
mutable only by agreement of the holder. This is not
really the case. The common law also has built-in leeways
which courts may use to make support rights correspond to
changing catacombs of coal. These leeways are the doc-
trines of limitations, waiver and implied easements.
The doctrine of limitations may modify support
rights. For example, in a turn-of-the-century Pennsylvania
case a cave-in was caused by a mine operator's failure to
leave sufficient pillars for support. The court found that
the surface owner had lost his right to recover damages as
a result of his failure to bring suit within six years (the
Pennsylvania statutory period of limitation).155
The doctrine of waiver is well illustrated by
the Ohio case of Rush v. Sines Bros. & Co. 5" In that case,
the owner of the fee conveyed all coal under the land and
the right to remove it. When a cave-in subsequently
occurred, the transfer was treated as constituting a
v/aiver of the grantor's support rights, since coal had
been mined previous to the transfer and all that remained
at that time were pillars, ribs, and stumps. In Maryland,
on the other hand, a deed which conveyed "all the coal"
was held not to constitute a waiver of support rights.157
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Just as the notion of waiver may be employed to
dispense with support rights by implication, implied ease-
ments may be used to create support rights. For example,
in the Pennsylvania case of Durante v. Alba^-58 the court
has held that where a landowner divides a tract and con-
veys a portion of it with a building on it, retaining
ownership of rest, there arises an implied duty of lateral
support for the building as well as the soil. Dicta in a
West Virginia case also supports the creation of an implied
easement in this fashion.-'-0"
C. Allocation of Responsibility
The discussion in this chapter has up to this
point developed the substantive bases of imposing legal
responsibility for injurious side effects from coal'mines.
It has assumed without specificity that if responsibility
is imposed, it will be imposed on the mine operator. In
so doing it has skirted a troublesome issue. As detailed
in Chapter III, there may be a number of persons who have
a stake in the coal taking operations — owners of the
surface rights, lessors of coal rights, and mine operators.
Hence all of these persons face the potential of liability.
Perhaps the best way of approaching these poly-
centric possibilities is to focus on one coal mine side
effect -- acid drainage. If acid drainage is deemed to
be a wrong for which a remedy is available, the primary
person responsible is the perpetrator of the wrong — the
operator of the mine which is the source of the acid
drainage. If the operator has entered under a lease or
is the owner of a severed mineral interest, the question
arises whether the lessor or surface owner also is respon-
sible. Few cases have considered this problem, and none
appear to have arisen in the acid drainage context.
Under general leasehold principles, a lessor in
Maryland, Ohio and Pennsylvania is not responsible during
the tenancy for wrongs committed by his tenant, unless he
has participated in the wrong or has supervised or retain-
ed control over the tenant's activities.160 Although it
is not uncommon to find that a lessor of minerals has
retained in the lease a right of inspection of the opera-
tion and of records, this has been interpreted in Pennsyl-
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vania to be outside the bounds of the control required to
impose liability on the lessor. The inspection provision
was viewed as serving to protect the lessor's royalty
interest and other rights, such as any right he may have
to surface support.161
Arguably, the continuous receipt of benefits by
the lessor in the form of royalties justifies imposing
liability on him for harm resulting from the conduct prod-
ucing the royalty, at least where those harms are reasonab-
ly foreseeable and the lessor makes no attempt to limit
them in the lease. The West Virginia Supreme Court follow-
ed this path in a 1965 case where a lessee strip miner
dumped spoil down a hillside, clogging a stream and caus-
ing intermittent flooding of plaintiff's land. The court
pointed out that the spoil could have been piled at the
mine site, although this would be more expensive than
pushing it over the side. There was no evidence that the
lease restricted the lessee, and the court held the lessor
jointly liable with the lessee. The court emphasized the
lessor's receipt of royalties and rejected his contention
that he had no connection with the actual operation.
This result seems particularly appropriate since the lessor
is likely to have a continuing connection with the land,
whereas the miner may depart before suit is brought (as
apparently happened in this case). The lessor can take
his risk into account in determining an acceptable royalty
and in the terms of the lease. Other courts have taken a
step in this direction by imposing liability on a lessor
when the harm would necessarily result from the lessee's
activities ,163 j-,ut ^he west Virginia court has gone the
farthest of the four states examined in this study.
One would suspect that the owner of a severed
surface interest would be more insulated from liability
than the lessor, and the absence of cases dealing with the
surface owner's liability or even involving surface owners
as defendants would seem to attest to this. Here too,
however, the fundamental question is whether there is any-
thing in the relationship between the surface owner and
the mine operator or his activities which justifies impos-
ing the liability on the former. Under the Pennsylvania
definition of mineral sales, the position of the sur-
face owner may be quite similar in fact to the position
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of the lessor in a state which does not find a sale as
easily. Thus, it is not surprising that the Pennsylvania
Supreme Court, in a case dealing with a surface owner's
liability for subsidence over an adjacent mine caused by
the operator's negligence, stated that it was irrelevant
whether the minerals were sold or leased — the position
of the surface owner was the same. He was not liable
in that particular case because of his lack of partici-
pation in the wrong.164
The lessor or surface owner may be responsible
under a duty stated independently of the tenant's commis-
sion of the wrong. For example, an Ohio public nuisance
statute has been construed as speaking directly to land-
owners, including lessors. The owner cannot insulate him-
self from liability by giving possession of.the property
to someone else.165
The liability of a vendee for nuisances existing
on the land at the time he purchases property, is a closely
related issue. Under general principles, the fact that
the vendee did not create the condition does not preclude
his responsibility for it. He may be held liable, at
least if he takes possession, the condition is abatable,
and he has had a reasonable opportunity to discover it.
A similar responsibility attaches to the lessor after
termination of the lease during which the harmful condition
was created.166
These general principles pose significant
difficulties when applied to inactive mines. Few such
cases have been decided. The rare example is a subsidence
case presented to the Illinois Supreme Court in 1964.
In that case, the Stonington Coal Co. had owned the mineral
estate in the land involved and had mined part of it before
1916. In that year, Peabody bought the mineral estate,
without assuming any liabilities. The surface was a farm.
Many years later, subsidence created a depression in the
surface which filled with water, resulting in crop loss and
a reduction in the value of the farm. Stonington had long
since been dissolved, and the plaintiff sued Peabody. The
court decided that Peabody was responsible for subsidence
over areas which it mined itself, but not for subsidence
79
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over the area mined by Stonington and left untouched by
Peabody. The court noted the lack of decisions in a min-
ing context pertaining to the vendee's liability for harm-
ful conditions created by a previous miner. It commented:
"Mining companies have flour-
ished and died. No assets
remain and there is nothing
remaining except the old coal
passageways under the ground.
Another company owns whatever
rights to mine coal the orig-
inal company once had. As in
this case, in many instances
forty years or more have gone
by since the last active mining
operation."167
The court believed imposing liability on the purchaser
would discourage the acquisition and mining of previously
worked mines, an unforturate result where modern machin-
ery and techniques make possible the recovery of prev-
iously inaccessible coal. Moreover, the liability for
removal of support is absolute, and there is nothing the
purchaser can do to restore it if insufficient pillars
were left by the previous miner. On the other hand, the
court said, purchasers of the surface can discover whether
mining has been done under the property by examination
of title records and recorded mine maps, and take the
risk of subsidence into account in negotiating the price.
The court's position is not without its diffi-
culties. It places much reliance on the ability of the
surface purchaser to ascertain the existence and extent
of mining beneath the surface, which depends largely on
the accuracy and existence of mining maps. Illinois may
have a sufficient system, but the absence of adequate
maps for older workings in other sta tes is notorious --
a problem not only for purchasers but for abatement
officials as well. A mining company purchasing the
mineral estate would appear to be in a much better
position to evaluate the adequacy of existing surface
support (a very difficult problem, to be sure), and to
bear the cost of insuring against this risk.
80
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The result reached by the Illinois court is
consistent with the Restatement of Torts position on the
issue, as well as a 1901 Pennsylvania case which involved
somehwat similar facts.168
To the extent these cases reflect a desire to
protect mine purchasers from liability for acts of their
predecessors, they apply as well to situations such as
acid drainage. This is particularly true of the policy
of encouraging purchase of partially mined mineral
estates so that the remaining mineral can be exploited
as new extractive devices are developed. But there are
also distinguishing characteristics. It may be impossible
to stop formation of the acid drainage, but the drainage
can be treated. If new mining is going to be done, water
quality standards will probably require such treatment
anyway.
A more difficult problem is what to do when
ownership of acid-forming material reverts to a surface
owner or lessor after mining is terminated and the mine is
abandoned. Encouragement of mineral exploitation is not
at issue in these situations. One might argue that the
risk of acid formation could have been taken into account
by the parties when they made their sale or lease arrange-
ment. But it seems clear that such is not usually the
case. In light of the massive cost of treating or abating
acid drainage, it is inappropriate to impose such a burden
on the surface owner or the lessor, at least without
clarifying his responsibility in advance.
D. Evaluation
Based on this smattering of authority private
common law litigation would seem to provide a vehicle
through which coal operators could be called to task for
coal mine diseconomies — acid drainage, sediment, sub-
sidence and surface scars. It would seem that coal
operators would abate and reclaim to foreclose financial
liability. But this has not come to pass. Ten thousand
five hundred miles of Appalachian streams are polluted by
mine drainage. The area primarily affected has remained
unchanged for 50 years.^-^ New technology has resulted in
the stripping and augering of expansive surface areas.
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Several reasons may be discerned as to why
private litigation has failed to make coal operators
internalize the full cost of their operation. First, in
many instances there is a dearth of plaintiffs. At the
turn of the century many owners of Appalachian land sold
to coal companies their right to complain of subsidence
and surface scars. The value of Appalachian land is low,
the cost of sealing deep mines and grading surface mines
is high. Hence, plaintiffs often find it not worth their
while to bring suit and even if they do, their stake is
too small to make it economically worthwhile for the coal
operator to internalize costs. Moreover, 78% of the acid
drainage comes from inactive mines. ^^ A preponderance
of these inactive mines are "orphaned" — abandoned by
previous operators. The courts for the most part have
proved unwilling to impose liability on persons other than
the actual mine operator (i.e., owners of the surface, or
lessors, or predecessors in title to the coal rights).
Once the mining has stopped it is difficult to find the
operator in a state of financial solvency.
In addition, there are other inherent limitations
on the efficacy of litigation.171 Adversary proceedings
are cumbersome. Lawyers and courts are expensive. The
wide diffusion associated with coal mine diseconomies
makes it hard to bring a single suit for full damages.
The leeways of the legal process make results difficult
to predict, thereby increasing the risks of litigation.
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V
STATUTORY RESPONSES TO COAL MINE SIDE EFFECTS
The inability of the common law to control the
environmental degradation of coal mining resulted in legis-
lative intervention. The intervention was either directed
at mining or covered mining as part of a more general
attempt at protecting environmental quality. It appeared
primarily at the state level, but was joined by local
ordinances in some cases, by interstate compacts and,
more recently, by Federal legislation. This chapter will
describe the more important responses. Brief mention
will be made of responses by local governments and inter-
state compacts. For ease of comparison, tables depicting
the overall pattern of legislation in the areas of water
quality and strip mining have been prepared and are
presented as Tables 4 and 5 . The text describing devel-
opments in these areas uses Pennsylvania as the major
example, in part because some of its solutions are typical,
in part because it has gone farther than other states in
atttacking the problems under consideration.
A. Water Quality
Each of the states involved in this study has a
comprehensive water pollution control statute, defining
prohibited discharges, authorizing the establishment of
water quality standards, and providing for administrative
supervision and enforcement. Each statute purports to
limit mine drainage either expressly or within the confines
of more general definitions.173 gut acid drainage is a
relative newcomer to the list of prohibited effluents.
The historical reluctance of legislatures to deal with
mine drainage problems is illustrated by the following
language from the 1937 version of the Pennsylvania Clean
Streams Law:
"The provisions of this article
shall not apply to acid mine
drainage from coal mines until
such time as, in the opinion
of the Sanitary Water Board,
practical means for the
83
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removal of the polluting
properties of such drainage
shall become known."174
Either the gravity of the problem or the state
of the art must have developed during World War II, for
in 1945 the law was amended to prohibit acid discharges
into clean waters devoted to public use; it also enjoined
discharges into clean waters not devoted to public use,
where the state made available diversion conduits. '^
Since the prohibition did not extend to polluted waters
or, for most practical purposes, to waters not devoted to
public use, the change was of limited importance. More
significant was a new requirement that the Sanitary Water
Board approve all drainage plans before a mine could be
opened, re-opened, or continued. A mine operator could
be required to pre-plan acid drainage control and take
abatement measures into account while he mined. The
Board could refuse its approval when acid drainage could
not be controlled in a particular mine, at least where
the receiving stream was clean and devoted to public
use.176
In 1965 the Pennsylvania General Assembly wrote
into the Clean Streams Law findings that:
"(1) The Clean Streams Law as
presently written has failed
to prevent an increase in the
miles of polluted water in
Pennsylvania.
"(2) The present Clean Streams
Law contains special provisions
for mine drainage that discrim-
inate against the public
interest."177
This confession was deleted in 1970, but its message
was reflected in major statutory changes in 1965 and
1970 which essentially equate acid drainge to other
industrial wastes. No mine may now be operated unless
a permit is first obtained from the Department of
Environmental Resources or unless the operation is
permitted by departmental regulation.^7° The same
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prohibition applies to discharges from presently inactive
mines which were operated after 1965 under circumstances
requiring a permit. (The Department of Environmental
Resources was created in 1971 and has assumed the functions
previously exercised by the Department of Mines and Mineral
Industries and the Sanitary Water Board.17-9) A violator
not only faces civil and criminal penalties such as revoca-
tion of his permit, injunctions, civil penalties, fines
and imprisonment, but also may be refused a subsequent
permit if his violation "demonstrates a lack of ability
or intention...co comply with the law or with the condi-
tions of the permit sought."180
The specific authority to refuse a permit
because of existing violations was prompted by a 1969
lower court decision. °1 The statute at that time did
not specifically mention existing violations as grounds
for refusal and the court held that such grounds could
not be implied.
The specificity with which the Pennsylvania
statute has met water quality problems peculiar to mining
is not equalled in the other states which are subjects
of this study. For example, bonding requirements have
long been a mainstay of strip mining regulation, but their
use in control of underground mining or water quality is
atypical. But in 1970, the Pennsylvania legislature
authorized the Department to require a mine operator to
post a bond to ensure compliance with applicable regula-
tions and permit conditions, including those "insuring that
there will be no polluting discharge after mining operations
have ceased." The amount of the bond is within the dis-
cretion of the Department, and liability under it continues
"antil such time as the department determines that there
is no further significant risk of a pollutional dis-
charge. "182 Bonding requirements are particularly appro-
priate in this case since, as with strip mining, the
environmental hazards survive the actual operation. The
inflexible and low bond amounts set by many strip mine
statutes, which so long rendered their bonding require-
ments ineffectual, have been replaced here by authority
in the Department to match the amount to the risk incurred.
In view of the widely varying circumstances which may
produce mine-caused water degradation and the different
85
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protective responses which may result, this flexibility
is essential.
The previously discussed provisions dealing with
industrial wastes give the Pennsylvania Department of
Environmental Resources significant authority to control
the water-impairing side effects of mining both during and
after the mining operation. These provisions focus on the
operator. The Pennsylvania statute also attempts to clari-
fy the responsibility of persons other than the operator.
Section 691.316 provides:
"Whenever the Sanitary Water
Board finds that pollution
or a danger of pollution is
resulting from a condition
which exists on land in the
Commonwealth the board may
order the landowner or occu-
pier to correct the condition
in a manner satisfactory to
the board or it may order
such owner or occupier to
allow a mine operator or
other person or agency of the
Commonwealth access to the
land to take such action.
For the purpose of this
section, 'landowner' includes
any person holding title to
or having a proprietary int-
erest in either surface or
sub-surface rights.
"For the purposes of collect-
ing or recovering the expense
involved in correcting the
condition, the board may
assess the amount due in the
same manner as civil penal-
ties are assessed...:
Provided, however, that if
the board finds that the
condition causing pollution
86
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or a danger of pollution
resulted from mining opera-
tions conducted prior to
January 1, 1966, or, if
subsequent to January 1,
1966, under circumstances
which did not require a
permit..., then the amount
assessed shall be limited
to the increase in the
value of the property as
a. result of the correction
of the condition.
"If the Board finds that
the pollution or danger of
pollution results from an
act of God in the form of
sediment from land for
which a complete conserva-
tion plan has been develop-
ed by the local soil and
water conservation district
and the Soil Conservation
Service, U.S.D.A. and the
plan has been fully imple-
mented and maintained, the
landowner shall be excluded
from the penalties of this
act."183
Civil penalties, to which assessments under this provision
are equated, are collectible by the Commonwealth as personal
debts; amounts unpaid after demand constitute, upon record-
ing, a lien on the real and personal property of the
debtor.184
This section is clearly intended to impose
liability on persons such as surface owners of abandoned
strip mines and refuse piles, and owners of minerals in
inactive mines. Its application to owners of severed
surface interests where pollutants such as acid drainage
are being discharged from inactive underground mines is
less clear, since arguably the pollution does not result
87
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from a condition on his land. In any case, the statute
is useful in that it gives to the state permission for
surface access to the mine site.
The wording of the statute is unfortunate in
another respect. For present conditions resulting from
mining operations before passage of the statute, it limits
the liability of the landowner or occupier insofar as
assessment of costs is concerned. But the criminal
penalties of the statute apply to violations of "any...
order of the board...."185 This conceivably includes
orders to correct harmful conditions issued under Section
691.316. Aside from the questionable constitutionality
of imposing such a liability when there was no responsi-
bility at the time the mining was performed,186 the
unfairness of imposing such a burden is evident — and
is recognized by the limitation of liability for assess-
ments specified in the second paragraph of Section
691.316.
Despite these technical difficulties, the
Pennsylvania statutory scheme provides a good basis for
dealing with the problems of divided ownership and aban-
doned mines. The statutes of Maryland, Ohio and West
Virginia do not deal with this matter. They clearly do
apply to mine operators, but they speak to persons who
"discharge," or "place," or "cause to be placed" pollu-
tants and wastes into state waters,187 or "allow" such
wastes to flow,188 thereby leaving open questions of res-
ponsibility in the severed ownership context. The
question whether these terms apply to lessors of minerals
or owners of severed surface interests presents the
recurrent dilemma. On the one hand some of the statutory
language appears broad enough to bring these persons with-
in the circumference of responsibility no matter how
passive their role or indirect their connection with the
mining operation. A West Virginia statute, for example,
requires state approval of "any outlet...for the discharge
of wastes, or the effluent therefrom...."189 On the other
hand, the magnitude of the cost of alleviating these
conditions, the lack of clarification of the responsibility
of these persons at the time they purchased their property
interests or granted mineral rights, and the unlikeli-
hood they took such responsibility into account at that
88
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time suggest that these statutes should not be inter-
preted to apply to them — at least for transactions which
took place before the act was passed. The Maryland
Attorney General responded to the problem with the
following statement:
"In the case of an active mine
the enforcement action would
normally be brought against the
person conducting the mining
operation. However, it is quite
possible that the landowner of
an abandoned mine site could be
considered to be in violation
of the provisions of the law if
the mine site was causing acid
pollution by reason of the
failure of the landowner to
prevent it. Likewise, a land-
owner who permits a lessee...
or other person to conduct an
activity on the land which
causes pollution could be found
to be in violation of the stat-
ute. While enforcement may seem
harsh in some instances where
the landowner has failed to
protect himself the purpose of
the water pollution law is to
prevent the pollution of Mary-
land waters with the ultimate
objective of producing clean
water throughout the State."190
Several other Pennsylvania statutory responses
to mine related water quality problems are noteworthy.
In 1968 the Pennsylvania legislature acted to alleviate
the predicament of the small mine operator whose costs of
treatment would be too expensive for him to bear and at
the same time to provide treatment facilities which are
more efficient. In the Land and Water Conservation and
Reclamation Act, the Department of Mines and Mineral
Industries was authorized to build treatment plants for
mine drainage and to permit operators to use them, charg-
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ing the operators for their use.-1-91 An amendment to the
Clean Streams Law enabled the Department of Environmental
Resources to let coal operators (as well as other waste
dischargers) pay a fee in lieu of constructing or operat-
ing a treatment facility. These payments are to be used
for abatement programs or for the construction or consoli-
dation of treatment facilities. ^2
Likewise in 1968 the legislature enacted the
Pennsylvania Coal Refuse Disposal Control Act. This
statute deals with the wide range of side effects
associated with refuse banks, including water quality.
It gives the Department broad powers of control over
refuse piles, including the power to halt all opera-
tions in the pile when there is an imminent danger to per-
sons or property from the threat of sliding or shifting.
The act also authorizes an operator in some circumstances
to exercise eminent domain powers to obtain interests in
land necessary to the lawful operation of a refuse pile.
B. Surface Mining
Until 1939, most state statutes directed at
mining dealt with protecting the safety of miners. The
major exception was Pennsylvania legislation pertaining
to subsidence. But in 1939 the growing dislocation to man
and nature wrought by strip mining impelled the West
Virginia Legislature to act. The law passed was simple,
perhaps naive, but at least a beginning. It required the
operator to obtain a permit from the Department of Mines
and to post a bond of at least $150 per acre, conditioned
on backfilling the pit "so as to minimize the hazard of
floods, pollution of streams and water, accumulation of
stagnant water, and the destruction of...soil for agri-
cultural purposes." The sanctions for each day's viola-
tion were jail for up to one year or a fine of $50-$500,
or both.194
The list of states regulating surface mining
slowly increased, with each state borrowing improvements
added by others. Maryland and Ohio adopted statutes in
1947,195 and shortly thereafter Maryland's was declared
unconstitutional for including within its coverage only
one Of the two coal producing counties in the state.
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State
Md.
Pa.
H.Va.
TABLE 4
WATER QUALITY REGULATION
Prior Prohibited
Approval Acts Information Bond Supervision
regulations. Regulations Pollution is defined aa Resources before a administer and en-
of the state.
water Pollution Con-
Permit needed to place T° ««•• P°"«tion "ith- Board "»* reaujre P*an N°n*' trol Board may invea-
aquatic life or to use
as domestic water supply.
Industrial waste must To discharge or permit Any person who is is- Dep't. may require a Dep't. o Environmental
meet regulations or be to flow into watera of charging or permit ing bond from mine oper- Resource shall investi-
covered bv permit Op- •"*• ""Y induatrial to flow into water of ators to insure com- gate aa ar aa all facts
• ration of a mine must waste except as provided state any industri 1 plaince with statute, in relat on to the pollu-
meet regs, or be cover- bY «tatute. Board may waste is required o regulations or con- tion of tate waters.
ed bv oeirwit withhold permit of past supply basic informs- ditions of the per-
of Envir. Resources. bond continues until
it is determined tha*
there is no risk of
pollution.
Permit needed to allow To allow flow of indus- information required None- Cnie* of °iv- of Water
Permit ne*ded to -ypm. »*•"• -ithout a permit. compliance.
operate, or abandon a
aune.
Source:
Md. Code Ann. art. 96A, sec. 23 et seq. (Supp. 1971) and regulations thereunder;
Ohio Rev, Cod* Ann. sec. 6111. 01 et sea. (Page 1953 and Supp. 1970);
civil
Sanction
Attorney General upon request
of Board will bring action to
enjoin violator or one threaten-
otder.
Board may order landowner to
correct condition on his land
causing or about to cause pollu-
tion, or may order landowner to
allow miner or state on land to
correct it. Cost may be asaess-
510,000 plus 5500/day.
Chief may seek in]unction of
violation or noncompliance with
statute, regs., or permit condi-
tions. Chief may order correct-
reatocking.
Criminal
Sanction
order is a misdemeanor.
Finei up to 510,000 or
both.
Violation of statute or of
Board order shall be fined
up to $500 or imprisonment
Violation of statute, regs.
or order is aunmary offense.
Pine: 5100-51000, default
in payment results in 60 day
in jail. Second violation
within 2 years. Pine: $100-
both.
Persons who pollute, violate
statute, regs. or order or
who don't have permits are
guilty of misdemeanor, Fine:
Fine: 5100-510,000 or 6
months or both.
H.Va. Code Ann.
C.20-5A-1 et seg.. (1970) and regulations thereunder.
-------
This was the only statute in the four states in this study
to be invalidated, and the defect was remedied in new
legislation passed in 1955.197
Pennsylvania's firut bituminous surface mining
legislation in 1945 was typical of early attempts at
regulation.198 It required, within one year of completion
of the operation, backfilling of sufficient spoil to cover
the exposed coal face, grading of this cover, leveling and
rounding of spoil-bank peaks and planting the mined area
(or a substitute area if permitted) with trees, shrubs or
grasses as prescribed by the Secretary of Forests and
Waters. The major guarantee for these requirements was
a bond of $200 per acre (minimum, $2,000), which was for-
feited if reclamation was not properly performed. The
primary regulatory tool was a certificate which had to be
filed by any miner before opening an open pit mine, and
which had to be renewed at the end of each year. The
failure to register was punishable by a fine not exceeding
$5,000. In recognition of the need for government reclama-
tion activities if the operator failed to reclaim by him-
self, a Bituminous Open Pit Mining Reclamation Fund was
established consisting of forfeited bonds and registra-
tion fees.
This statute was gradually strengthened over the
next two decades. By 1961 the required bond had increased
to $400 per acre ($4,000 minimum). The bond was divided,
so that most was released upon approval of the backfilling,
leaving $60 per acre to be withheld until approval of the
replanting. Although still low in comparison with the
cost of the reclamation in many instances, the amount of
the guarantee was becoming more realistic. Another amend-
ment prohibited reject coal or combustible material from
being included in the overburden backfilled over the coal
face. Particularly important were the stronger sanctions.
The Attorney General was authorized to seek injunctive
relief, the Secretary of Mines was authorized to order a
halt to mining at a site where violations occurred, and,
most, important, issuance of a certificate was conditioned
upon a finding that the miner had complied with reclamation
1 OQ
requirements in the past. ^
The year 1963 brought a wholesale revamping of
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the bituminous strip mining statute, and this forms the
basis of the present law.200 Augering is now included
and an exemption for small operators (less than 250 tons
per year) was eliminated. Reclamation plans must now be
approved in advance and the uniform requirements of the
early law have given way to more flexible administrative
requirements which may be tailored to the needs of differ-
ent mine settings. Backfilling must be kept current while
mining is in progress. A land reclamation board, made up
of representatives of different interests in government,
the conservation field and the mining industry, was creat-
ed to exercise supervisory powers over the reclamation
plan; this board was eliminated when the Department of
Environmental Resources was created in 1971, however, and
its responsibilities assumed by the Department.201 Like
the substantive requirements, the bond also has been made
more flexible: It is now $500-$!,000 per acre, with a
$5,000 minimum. (In West Virginia, the Legislature has
increased the bond to $600-$!,000 per acre, with a $10,000
minimum).202 T^e Device of a single certificate per
mining operation was replaced by a dual registration
requirement: an annual license for each miner, with a
$300 fee going to the reclamation fund, and a permit for
each mining site. Neither the license nor the permit
may be issued to violators of the statute, again probably
the most significant sanction. Reclamation must now
commence within six months of completion or abandonment
of the operation. Finally, the Legislature recognized
the possibilities of a law becoming weakened through non-
enforcement. Citizens were given the right to sue enforce-
ment officials in a mandamus action to obtain enforcement
of the Act, when it was "wilfully or deliberately" not
being enforced. A similar provision was adopted in West
Virginia.203
West Virginia has also adopted what is perhaps
the broadest control short of an outright interdiction of
surface mining. The Director of Natural Resources was
empowered to prohibit such mining in any area where it
may create stream pollution, landslides, destruction of
recreational values and other hazards to life and prop-
erty. Even in areas where stripping is generally permit-
ted, a permit may be refused or revoked if proper reclama-
tion is unlikely to be performed or if substantial
93
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sedimentation, landslides or acid pollution cannot be
204
prevented.
An outline of the present laws of Pennsylvania,
Maryland, Ohio and West Virginia is presented in Table 5.
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PRIOR
APPROVAL:
PROHIBITIONS:
BONDS:
FEES:
RECLAMATION
FUND:
CIVIL
SANCTIONS:
CRIMINAL
SANCTIONS:
REPLANTING:
RECLAMATION:
SURFACE MINING REGULATION
Maryland
License required to be a strip miner.
Permit required for each job. Reclamation pre-plan required for permit.
If ownership is split, land owner's consent is needed to allow miner or state to enter
land to reclaim it.
A sediment control plan must be approved by local soil conservation district.
License may be denied if operator fails to comply with statute.
Job permits not issued to past violators.
$400/acre, $3000 minimum bond or equivalent.
Separate revegetation bond: $50-$125/acre.
Bond released when final report (incl. planting report) is approved.
License fee: $100 plus $10 a year to renew.
Special fee for reclamation: $30/acre matched by state.
Special fee, license fee and forfeited bonds go to reclamation fund to be used to reclaim
land for which bond was forfeited then on other affected land.
Fines for mining without license or permit go to special reclamation fund.
Violation of statute or of regulations results in notice to cease. Continued noncompliance
may result in cancellation of permit.
Violation of statute for which liability has been charged on bond results in forfeiture.
Mining without a license: $5000 to $10,000 or 6 months or both.
Permit violation: $500-$5000.
Sediment control violation: up to $5000 or 1 year imprisonment for each violation.
State forester makes recommendations for each job.
Completed within 90 days; reject and toxic material buried; detailed plan in regulations.
Source:
Md. Ann. Code art. 66C, sec.657 et seq. (1970 and Supp. 1971) and regulations thereunder; art. 96A
sec.105 et seq. (1964 and Supp. 1971).
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TABLE 5 (continued)
Ohio
PRIOR
APPROVAL:
PROHIBITIONS:
BONDS:
FEES.
RECLAMATION
FUNDs
CIVIL
SANCTIONS:
CRIMINAL
SANCTIONS:
REPLANTING:
RECLAMATION:
License required for each job good for only one year.
If ownership is split, land owner's consent is needed to allow miner or state to enter land
to reclaim it.
License not issued to past violators.
No license where sediment will damage land of others.
$30Q/acre, $2000 minimum bond or equivalent*
Part of bond release^ after backfilling ana regra<3ing is approved, $225/acre.
Remainder of bond released when replanting approved.
License fes: $75 plus $15Acre per year.
All money paid to chief of t>ivision of Forestry and Reclamation go to a reclamation fund.
Expended for reclamation only upon appropriation by General Assembly.
Violation of statute results in notice to cease. Continued noncompliance may result in
cancellation of license,,
injunctions by Attorney General possible to enforce statute.
Failure to amend license or deposit bond: $300-$1000»
Mining without license or failing to take steps to minimize discharge of pollutants: $300-
$1000,,
Replanting according to approved plan or an alternative plan without approval if operator
will be willing to extend bond liability from one to five years.
Reclamation must start within 2 years and 2 months of end of first year of mining,
Spoil banks must be reduced. Acid water must be prevented, if possible.
Source:
Ohio Rev. Code Ann. sec. 1513.01 et _s.e.g. (1963 and Supp. 1970).
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--J
PRIOR
APPROVAL:
PROHIBITIONS!
BONDS:
FEES:
RECLAMATION
FUND:
CIVIL
SANCTIONS:
CRIMINAL
SANCTIONS:
REPLANTING:
RECLAMATION:
License required to be a strip miner.
Permit required for each job good for entire job. Reclamation pre-plan required for permit.
If ownership is split, land owner's consent is needed to allow miner or state to enter land
to reclaim it.
License may be denied if operator fails to comply with statute.
Job permits not issued to past violators.
$500-$1000/acre, $5000 minimum bond or equivalent.
All but $100/acre released after backfilling is approved.
Remainder of bond released when replanting approved.
License fee: $300 plus $300 a year to renew.
Special fee, license fee and forfeited bonds go to reclamation fund to be used to reclaim
land for which bond was forfeited, then on other affected land.
Fines for mining without license or permit go to special reclamation fund.
Violation of statute or of regulations results in notice to cease, continued noncompliance
may result in cancellation of license.
Violation of statute for which liability has been charged on bond results in forfeiture.
Injunctions by Attorney General possible to enforce statute.
Mining without a license: $5000 to $10,000 or 6 months or both.
Permit violation $500-$5000 or 3 months or both.
Replanting within one year of backfill according to detailed regulations.
Backfilled in accord with pre-plan within 6 months of completion or abandonment. Replant
within one year; detailed plan in regulations„
Source:
Pa,, Stat. Ann., tit. 52, sec. 1396=,! et sec
thereunder.
(1966 and Supp. 1971) (bituminous coal) and regulations
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TABLE 5 (continued)
West Virginia
00
PRIOR
APPROVAL:
PROHIBITIONS;
BONDS
PEES :
RECLAMATION
FUND:
CIVIL
SANCTIONS:
CRIMINAL
SANCTIONS:
REPLANTING:
RECLAMATION:
Permit required for each job good for only one year. Reclamation pre-plan required.
Job permits not issued to past violators.
No permit where sediment and acid drainage cannot be prevented feasibly.
No permit to a revoked permit holder unless bond was actually paid.
Two year prohibitions on strip mining in counties where none was lawfully done in 1970.
$600-$1000/acre, $10,000 minimum bond or equivalent.
Remainder of bond released when replanting approved.
Permit fee: $100 plus $50 a year to renew.
Special fee for reclamation: $60/acre.
Special reclamation fee credited to special reclamation fund which is used according to
Dep't. of Nat. Res. plan to reclaim affected lands.
Violation of statute or regs. results in cease order or permit suspension.
Permit revocation and bond forfeiture possible.
Mining without permit or bond with false information: $100-$1000 or 6 months or both.
Deliberate violations of above: $1000-$10,000 or 6 months or both.
In addition to fines, violator has to pay cost of reclamation.
Appropriate vegetation planted in first proper season. Type depends on soil.
Done according to detailed regs.
Reclamation within one year of expiration of permit, but regrading must be kept current.
Detailed plan in regulations and 1971 statutory amendments.
Source:
W.Va, Code Ann. sec. 20-6-1 et seq. (1970 as amended 1971).
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C. Sea 1 ing Requ irements
All four subject states have adopted statutes
requiring sealing of underground mines. These statutes,
however, were enacted either quite recently or had as
their purpose the protection of the safety of persons
who might come near the mine. Thus, it is not surprising
that few inactive underground mines have been sealed with
acid drainage abatement in mind.
For example, Maryland requires entrances of a-
bandoned mines to be fenced and, if sealing is done, that
the work be done in a substantial manner, with incombust-
ible material and a pipe and cap or valve.20^ More
directly related is the requirement that strip mine
operators, as part of the reclamation process, seal under-
ground mine openings at the base of the final cut so as to
avoid dangers resulting from the impoundment of large
quantities of water.206 West Virginia now also requires
sealing or ventilation of abandoned mines (after July 1,
1968) with incombustible materials as prescribed by the
Director of Mines.207 Ohio requires abandoned mine
openings (after August 26, 1949) to be sealed, but goes
into somewhat greater detail about the nature of the seal,
specifying construction of concrete or masonry bulkheads
effectively anchored.208 Such seals protect against
discharge of some types of mine drainage, but the problem
is too complex to be fully solved by a provision such as
this.
Although Pennsylvania had adopted similar seal-
ing statutes in the past, a recent amendment re-defines
mine sealing to include the closing of an opening into a
mine in such a manner as to minimize or stop the pollution
of the waters of the Commonwealth. ° Operators must seal
all openings through which water may flow into any of the
streams of the Commonwealth, beginning with 60 days of
the abandonment of the mine and finishing within six months
of abandonment. The basic statute for which this is
an amendment was adopted in 1947 and provides that the
state shall seal at its own cost abandoned mines not in
possession of the operator on the date of the act. Seals
approved by the Department must be maintained by the
Commonwealth, and the Department of Environmental Resour-
99
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ces is authorized to enter on lands were openings are
located in order to seal. Any sealing done by private
individuals must be in accordance with a plan approved by
the Department.
It should be noted that these statutes which
require sealing typically apply to mines in active opera-
tion at the time of the act, and not those abandoned
before. The Pennsylvania act does refer to those abandon-
ed before, but chiefly to enable government sealing work
to be done.
Still, what constitutes an abandoned mine can
play a role, since it may be difficult to know whether a
mine is abandoned after the date specified or whether the
operator has only temporarily left it. Some Pennsylvania
statutes specify a time period after which the mine is
presumed to be abandoned. A presumption of this kind
is quite useful in protecting against environmental
hazards such as acid discharges. If the miner intends to
return to the mine, he should be impelled to do so quickly
or to seal the mine (or carry on other abatement or reclama-
tion activities) pending his return. A specified time
period would accomplish this. A similar principle applies
in strip mining, where the operator should be required to
reclaim not just after abandonment of the entire operation,
but also if the operation is temporarily vacated with an
intention to return. Requirements to backfill concurrent-
911
ly with the operation help provide this protection.
A specified time period is preferable to the
uncertainties of the traditional common law rule, which
defines abandonment in terms of an intention of the
operator to give up his rights combined with external acts
reflecting that intention. -*-2 This test was developed
to ascertain whether property rights, particularly lease-
hold rights, were surrendered. In these cases, the balance
struck is primarily between private parties. The test
recognizes the need for protection of the holder of the
rights allegedly surrendered. But the public interest in
environmental quality suggests that activity designed to
enhance that quality be begun as quickly as possible,
even if the operator intends to return to the mine — an
intention clearly inconsistent with the traditional defini-
100
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nition of abandonment in other contexts.
Whatever the purpose of mine sealing, any require-
ment is inadequate if maintenance and protection of the
seal are not assured. Failure to provide such protection
is one of the reasons for the long-run ineffectiveness of
the Federal Works Progress Administration sealing program
during the Depression. Pennsylvania's statute is the only
one which provides for maintenance, the responsibility
being on the Commonwealth.2-*-3 Pennsylvania law also
prohibits the reopening of sealed mines without the
approval of the Department of Environmental Resources.2-^
West Virginia takes a somewhat different tack, requiring
ten days' notice to the Department of Natural Resources
before opening any old or abandoned mine in which water
has collected to such a degree that it may drain into a
water course. ^ Although Departmental approval appar-
ently is not required, West Virginia's water quality
statute does require a permit before any mine may be
re-opened, if pollution is likely to result. ^
D. Subsidence
Although a detailed consideration of this
problem is beyond the scope of this study, brief mention
should be made. Pennsylvania is the only one of the
four states in this study which has dealt with subsidence
in significant degree by statute.
It has had legislation in this area for more than
50 years. Its present scheme is three-pronged, regulating
support rights, creating insurance and authorizing govern-
mental intervention. The major regulatory statute is the
Bituminous Mine Subsidence and Land Conservation Act of
1966.2^7 Although similar in some respects to a statute
declared unconstitutional in 1922,218 this act is substan-
tially more complex. In addition to prohibiting mining
which results in subsidence of public buildings, residen-
tial buildings and cemetaries, the act requires the miner
to obtain a permit from the Department of Environmental
Resources. The permit is to be iss.ed only if the appli-
cation shows sufficient support will be provided for
protected surface structures, and may b«? revoked if
subsidence damages occur and compensatic. or repairs not
101
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made. Mine maps or plans must be made, kept current, and
recorded as public records. Notice of mining must be
given to political subdivisions and surface owners.
Surface owners who have or build structures without support
rights may require the owners of the economic interest in
the coal to sell their support rights (with the amount
of compensation ultimately decided under the Commonwealth's
Eminent Domain Code if a satisfactory amount is not agreed
upon). Surface owners without support rights who are
entitled to take advantage of this procedure lose all other
legal recourse for subsidence damages if they do not do
o] Q
so. ^xy
The Anthracite and Bituminous Coal Mine Subsi-
dence Fund, made up of premiums paid by subscribing home
owners, was created in 1961 and supported by an initial
appropriation of one million dollars.220 ^he insurance
principle is particularly appropriate for the subsidence
problem, since this risk may or may not materialize and,
if it does, may occur at a time far in the future which
cannot be predicted. Also, risks which may not have been
serious when the surface was rural or forested, become
much more serious when residences or other buildings are
constructed. Thus, protection against the risk can be
added through insurance when the size of the risk increases
by virtue of new surface construction.
The cost of alleviating subsidence where suffic-
ient support was not left in the past suggests governmental
action, and such is the third avenue of attack in Pennsyl-
vania. Under the comprehensive Land and Water Conserva-
tion and Reclamation Act of 1968,25 million dollars was
allocated for remedial action against subsidence over
991
abandoned mine operations. *•*- The Commonwealth's acti-
vities in this regard were aided in 1968 by adoption of
a statute designed to overcome the delays created by
inability to locate property owners and obtain the right
to enter on private property to combat subsidence. If
an emergency exists such that immediate action must be
taken, and if the owner of the property on which entry
must be made are unknown, "not readily available" or
unwilling to permit the governmental agency involved to
enter, the governmental agency involved may enter and
take the necessary remedial action upon giving notice to
102
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known owners or, if unknown, by posting and advertisement.
The expenses of the remedial action and any benefits
accruing to the land are charged against the land to
offset any claims by the owner for damages.222 By its
terms, this statute applies to fires in mines and refuse
banks as well as subsidence.
E. Public Works Projects
It is clear that governmental funds must sponsor
some of the rehabilitation which is necessary in the area
of environmental control of mining side effects. This is
true particularly of abandoned mines, where the immense
cost cannot be borne by private individuals.
One source of financing has been the reclamation
funds established either by fees and bond forfeitures or
by special per-acre payments under strip mining statutes.
These funds have been too small, however, to handle the
demands imposed by the requirements of abandoned mine
reclamation.
Federal funds have been made available for demon-
stration projects under the Federal Water Pollution Control
Act, for both demonstration projects and general reclama-
tion activities under the Appalachian Regional Development
Act, for mine sealing and filling in the Pennsylvania
anthracite fields and for combatting mine fires. On
the state level, the most comprehensive scheme is that in
Pennsylvania, where a 500 million dollar bond issue was
authorized under the Land and Water Conservation and Reclama-
tion Act of 1968.224 Almost 90% of this amount is allocat-
ed to correction of adverse environmental side effects
from past mining. In Maryland a five million dollar bond
issue was authorized in 1970 to clean up drainage from
abandoned mines.
F. Miscellaneous
The statutes previously described constitute the
major state legislation in the areas under study here.
Occasionally, others, such as public nuisance statutes,
may be brought into play. This section describes some of
them.
103
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1. Soil Conservation Districts
Local soil conservation districts have played a
large role in some of the areas under concern here, parti-
cularly in strip mine reclamation. Most work in the past
has been of an educational and advisory nature.22" In
addition, the expertise of local soil conservation experts
has been brought into play by such means as presence on the
Land Reclamation Committee in Maryland and through the
recently enacted Maryland Sediment Control Law, which gives
local conservation officials significant powers to regulate
any activity, including strip mining, which may result in
erosion and sediment.22^
2. Local Controls
Some types of mining, particularly surface mining,
have become subject to local controls such as zoning ordin-
ances. Thus, it is not uncommon to find ordinances speci-
fying control and use of land insofar as sand and gravel
operations are concerned. These operations lend them-
selves to local control, since the nature of the market
demands that they be located close to a place where the
product will be used. Coal mining has been less subject
to this kind of control, but occasional ordinances have
dealt with it.228
The same considerations which apply to determin-
ing the constitutionality of state regulation of surface
mining applied to local regulation. Two additional factors
come into play in the local arena, however. First, the
control involved must be authorized by the local govern-
ment ' s enabling legislation. This is often implied
from a more general authorization concerning land use and
control. More difficult is the question whether the
state, by enactment of a strip-mine control statute, has
pre-empted the field from the local government. The pre-
emption principle was applied in invalidating a local
regulation in Ohio.
An alternative technique was used in West
Virginia, where the legislature itself in 1971 prohibited
strip mining for two years in those counties where strip
mining had not been done in 1970.
104
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3. Interstate Compacts
Although not strictly state statutory responses,
interstate compacts should be noted here. All four states
in this study belong to major compacts which give signi-
ficant regulatory powers to the compact commissions. The
major compacts of importance here, the dates of their
creation and the states which are parties are:
(1) Ohio River Valley Water Sanitation
Compact (ORSANCO) (1948) (Ohio, Pennsylvania,
West Virginia, Illinois, Indiana, Kentucky,
New York, Virginia) ;23i-
(2) Susquehanna River Basin Compact (1970)
(Maryland, Pennsylvania).232
Although the Susquehanna Compact gives substantial regu-
latory powers to its commission, both over basin waters
and riparian lands, it is untested. On the other hand,
ORSANCO has a long history of dealing with the water
quality effects of coal mining. Its history in the area
of acid mine drainage parallels that at the state level --
from early inaction to growing regulation. ORSANCO has
played a significant educational and advisory role as
well.233
The Interstate Commission on the Potomac River
Basin23^ was established in 1941 by Maryland, Pennsylvania,
West Virginia, Virginia and the District of Columbia. The
Commission has primarily served an educational, research
and advisory role. A Potomac River Basin Compact similar
to the Susquehanna compact has been prepared but has not
yet been ratified by enough states to go into effect.
The Interstate Mining Compact has been ratified
in Pennsylvania and Kentucky. Aimed specifically at cooper-
ation in surface mining control, it is of an educational
and advisory nature and has not yet been ratified by the
requisite number of states to become effective.23^
105
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VI
CONSTITUTIONAL LIMITATIONS ON STATE ACTION
The harmful environmental side effects from coal
mine operations have already been detailed. States have
at their disposal a variety of strategic responses. In
terms neither all inclusive nor mutually exclusive these
responses may be categorized as follows:
(a) prohibition of side effect;
(b) requirement of operator investment
to remedy the side effect; or,
(c) government investment to remedy the
side effect.
This chapter will investigate the extent to which state or
federal constitutional provisions limit the ability of the
states to make use of these strategies.
It is more or less an accepted notion of consti-
tutional government that the powers of state legislatures
are plenary except as limited by provisions of the state
or federal constitution. This residuum of regulatory
muscle is referred to as the "police power" and was
traditionally said to include regulations designed to
promote the public "health, safety and morals."236 At
one time this definitional trinity may have itself limited
the permissible bounds of state activity. Not today
(except for some lingering doubts as to the propriety of
actions for purely aesthetic purposes)237 state legisla-
tures have authority to regulate "men and things. "238
The United States Supreme Court aptly described the
present state of the police power as follows:
"Subject to specific consti-
tutional limitations when the
legislature has spoken, the
public interest has been dec-
lared in terms well-nigh con-
clusive. In such cases the
legislature, not the judic-
iary, is the main guardian
of the public needs to be
107
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served by social legislation,
whether it be Congress...or
the states...."239
What then are the "specific constitutional limitations"
on legislative action?
A. Prohibitions of Side Effects
There are an all but unlimited number of ways
in which the police power might be used to prohibit exter-
nalities from coal operations. Two typical illustrations
are presented. First, mining operations make extensive
use of water as a waste transport medium — both seepage
and particulate matter may be disposed of into receiving
streams. The states have prohibited or limited such
effluent discharges through the adoption of water quality
standards.240 Second, Congress has under consideration a
bill which would prohibit all future surface mining.
Maryland and West Virginia also have regulations prohibit-
ing traditional surface mining on slopes greater than 33
degrees in grade, because of landslide and revegetation
problems.^42
Prohibitions of these sorts may be called into
constitutional question under provisions of the federal
and state constitution. It is simple to frame the consti-
tutional principles in abstract terms. Under the Four-
teenth Amendment to the United States Constitution and
more or less analogous provision in state constitutions,
the states may "regulate" the use of private property
under the police power, but the states may not "take"
private property without payment of just compensation.
The economic impact of this theorem is likewise simple to
state: if the state is permitted to pursue its purpose
under the police power, any resulting reduction in property
value is borne by the private owner; if the state is requir-
ed to use its power of eminent domain, this cost is swallow-
ed by the state.
While the consequences which follow from the
determination that a governmental action is either a
"taking" or "regulation" are clear, the distinction is
less than clear. There is a necessary tenuity in any
108
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distinction between governmental activities which have the
same economic consequences — reduction of the value of
property. In context and historical sweep, however, the
common law provides more explicit predictors. To illus-
trate these, consideration will be given to the consti-
tutionality of prohibitions of discharges of mine wastes
into receiving streams, and of prohibition of all surface
mining activities.
1. Prohibition of Discharge of Mine Waters
into Receiving Waters
The Federal Water Pollution Control Act requires
the states to adopt quality standards for all navigable
waters.243 These standards which also have been supplement-
ed by quality standards for non-navigable waters in the
four states have a consequential effect of limiting the
nature of effluents that mining operators can deposit in
receiving waters. Moreover, a recent Presidential Order244
directed the Corps of Army Engineers to vitalize the River
and Harbors Act of 1899245 an(j to require a permit as a
prerequisite to discharge of any industrial effluent.
Enforcement of stringent quality standards or
denial of a Corps permit would significantly reduce or
destroy the value of mining property. But it would seem
that such governmental actions are relatively safe from
constitutional attack. As previously seen the right to
use state waters as a waste disposal system has histori-
cally been limited by rights of other landowners to make
reasonable use of the same waters, and if one landowner
discharges an excessive load he may be enjoined or found
liable in damages. Hence, at least in formal terms,
enforcement of water quality standards or denial of
permits may be said to merely substitute new restraints
for old ones.
However, as the recent case of Reserve Mining Co.
v. Minnesota Pollution Control Agency246 illustrates,
state enforcement actions are not totally immune from
constitutional difficulties. In that case the Reserve
Mining Company had between 1947 and 1969 invested 350
million dollars in a taconite mining facility. In
109
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connection with this operation and pursuant to federal and
state permits it discharged tailings into Lake Superior.
In 1969 the state water pollution control agency revised
its water quality standards so as to include an "anti-
degradation" clause and effluent standards, both of which
the Reserve discharges would arguably be in violation of.
The Minnesota district court held that these
revised standards were not themselves unconstitutional but
that their enforcement against Reserve Mining "without
granting that company a reasonable opportunity to adjust
and modify its mode of operation would amount to a consti-
tutional violation and a 'taking of property without due
process of law.'"247 The court retained jurisdiction in
an effort to encourage establishment of a modified method
of discharge through negotiations between the parties.
Hence, stringent limitations on discharges from mining
operations which interfere with effective utilization of
a facility in which there has been a significant capital
investment may be constitutionally vulnerable.
2. Prohibition of Strip Mining
Governmental action may frontally attack the
environmental problems of coal operations by prohibiting
mining operations themselves. An example of this tactic
is found in H.R. 4556, a bill now pending in Congress, which
provides as follows:
"...no person shall open in
any state any new, inactive,
or abandoned surface coal
mine for the purpose of
conducting surface coal
mining operations thereon."248
The question obviously arises as to whether the government
may so prohibit strip mining, without paying compensation.
It is difficult to effectively answer this ques-
tion in terms of the "crazy-quilt pattern of Supreme Court
doctrine, "249 t>ut several leads may be followed. The first
Justice Harlan attempted to define the "taking" of prop-
erty in a relatively literal fashion. In the leading case
of Mugler v. Kansas250 he asked the question whether the
110
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governmental action physically invaded a private estate,
or dispossessed a private owner, and answered that since
all that was involved was a prohibition against the sale
of liquor there was ho "taking." Likewise, it might be
said that a prohibition against strip mining neither
invades nor dispossesses and is therefore not "taking."
Justice Holmes developed a more pragmatic econ-
omic test which can lead to differing results. Holmes
focused on the economic impact of government action and
posited that if it resulted in an excessive reduction in
the value of private property it constituted a taking.
Applying this test in Pennsylvania Coal Co. v Mahon^Sl
he found that Pennsylvania legislation prohibiting
deep mining under houses and streets and within city
limits, to be excessive.
While the Holmes approach certainly has the vir-
tue of flexibility, it is not particularly helpful in
predicting results — what amount of reduction in prop-
erty value is too much? Some state court decisions have
addressed themselves to this question with surprising
exactitude. For example, an Illinois court expressed
the following view about a zoning ordinance which barred
strip mining:
"The destruction or value in
the land involved is very
great. For coal purposes it
is twenty times as valuable
as when restricted to agri-
culture. We can find no
parallel to such an attempt-
ed invasion of property
rights. We can find no case
in Illinois sustaining a
zoning regulation prohibit-
ing a specific use where
that use was more than three
times the permitted use."252
Most judicial pronouncements, however, are more
abstract. For example, the Maryland Court of Appeals in
a zoning case presented the following test of "taking:"
111
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"If a property owner be unable,
permanently to use his property
for any of the permitted pur-
poses and is therefore deprived
of all beneficial use thereof...
he may successfully attack the
validity of the ordinance as a
taking of his property without
compensation."253
What this language means is obviously (and perhaps pur-
posefully) murky. But one way of quantifying it is
to create an analogy to public utility rate-making cases
and to constitutionally guarantee property owners a
"fair (5-6%) return" on their investment. Government
action which precludes the possibility of such a return
thence becomes a "taking." Support for this approach
can be extrapolated from City of Baltimore v. Cohn.
There a property owner successfully challenged the con-
stitutionality of a zoning ordinance limiting his tract
to residential development with a factual demonstration
that:
"...no bank, insurance company,
loan company, or government
agency would be willing to
finance a residential develop-
ment of the tract."254
The court, it appears, respected the institutional lender
as a rational profit maximizer and was duly impressed with
testimony that orthodox financing was not available.
Based upon the above, some very tentative gen-
eralizations can be made as to the constitutionality of
the application of a prohibition against surface mining.
The holder of the property interest (be it a fee simple
estate which includes mineral rights or separate mineral
rights) is at least entitled to a fair return on his
investment, and if application of a ban on strip mining
precludes such a return, compensation is constitutionally
mandated. A corollary of this proposition would seem to
be that if there has been severance of the mineral inter-
est, then a prohibition against strip mining will result
112
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in a taking unless there is a feasible alternative means
of extracting the coal. Several reasons can be advanced
in support of this conclusion. The fact of severance
assures an investment in the mineral rights as such, dis-
pells the possibility of productive non-mining uses, and
in terms of Harlan's test makes the prohibition tantamount
to a physical dispossession. But both the proposition and
the corollary are subject to qualifying stresses. Some
courts have denied compensation notwithstanding government-
al action which ostensibly prevents private parties from
receiving a fair return, upon proof of sufficiently impor-
tant public need.255 one conceit that sometimes can be
used in reaching this result is the return to the Harlan
test.256 Conversely, some courts have seemed concerned
not in merely assuring some beneficial use of property
(i.e., a fair return on investment) but in guaranteeing
a return to some degree commensurate with the present
fair market value of property (including coal development
potential).257 Such a concern, if taken seriously, would
mandate compensation as a prerequisite to the banning of
strip mining unless and in the unlikely event that there
is some alternative, equally profitable use (e.g., deep
mining, industrial development, etc.).
B. Requirement of Operator Investment
As previously discussed there are few if any
constitutional limitations on the abilities of the states
to require coal operators to make investments to prevent
discharge of mine wastes into receiving waters. Such
requirements are typically upheld as valid exercises of
the state's police power. But a nicer constitutional
question develops when the states attempt to impose the
cost of remedying past mining degradations on the present
generation of miners. Such attempts typically take the
form of licensing taxes imposed on strip mine operations,
the proceeds from which are earmarked for use in the
reclamation of previously stripped land.
The basic problem is one of equity — is it
fair to allocate the cost of past environmental abuse on
today's coal miners. This question is converted into
constitutional terms through the Fourteenth Amendment of
the United States Constitution. In 1890 the United States
113
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Supreme Court said:
"The provision in the Fourteenth
Amendment, that no state shall
deny to any person within its
jurisdiction the equal protec-
tion of the laws, was not
intended to prevent a state
from adjusting its system of
taxation in all proper and
reasonable ways....It may im-
pose different specific taxes
upon different trades and
professions....We think that
we are safe in saying, that the
Fourteenth Amendment was not
intended to compel the State
to adopt an iron rule of equal
taxation."258
In 1920, however, the court observed:
"Any classification is permis-
sible which has a reasonable
relation to some permitted
end of governmental action....
It is enough...if the classi-
fication is reasonably found-
ed in the purposes and policy
of taxation."259
Hence, the Equal Protection Clause may mandate some
nominal nexus between the class to be taxed and the goal
to be accomplished with the revenues.
There is a rather clear economic justification
for imposing the cost of cleaning up past coal mine scars
on the present crop of strip mine operators. To the
extent the market will allow, these strippers will pass
the cost on to the coal-using public. Hence, indirectly
the tax will fall on the group which has benefitted from
the scarification of the countryside in terms of cheaper
coal. The "user-pays" justification, coupled with the
court's announced disinclination to review the classi-
114
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fications,* would seem to assure the legality of such ear-
marked funds under the federal constitution.
The scope of judicial review of legislatively
created tax classification is presumably broader in
Pennsylvania, which has a state constitutional provision
requiring the "uniform" application of state taxes.261
This clause was used to attack a reclamation fund finan-
ced from a tax levied against open-pit operators on the
theory that the tax lacked uniformity in that a similar
tax was not levied against strip mine operators. The
Pennsylvania Supreme Court noted the substantial differ-
ences in strip mines and open-pit mines and upheld the
legislation with the following statement:
"The payment of the registra-
tion_fee /used for reclamation
fund/must be made by all the
operators in this class.
*In Connelly v. Union Sewer Pipe Co., the Supreme Court
said:
"A tax may be imposed only upon
certain callings or trades, for
when the state exerts its power
to tax,it is not bound to tax
all pursuits or all property that
may be legitimately taxed for
governmental purposes. It would
be an intolerable burden if a
State could not tax any property
or calling unless, at the same
time, it taxes all property or
all callings. Its discretion in
such matters is very great and
should be exercised solely with
reference to the general welfare
as involved in the necessity of
taxation for the support of the
state."260
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There is, therefore, no basis
for the suggestion that the
Act does not operate uniform-
ly on all the members of the
class."262
Hence, in Pennsylvania the courts uphold reclamation funds
with a bit of rhetorical sleight-of-hand.
C. Governmen.t Investment
The two strategies already discussed — prohibi-
tions and requirements of operator investment — are best
employed where an environmental degradation can be attrib-
uted to an on-going mining operation. Where the side
effects — mine acid formation or surface scars — have
no relationship to continuing operations direct government
action may be called for. Since approximately 6.6 billion
dollars would be required just to abate existing mine acid
drainage in Appalachia, government is the only institution
with financial capacity to deal with the problem;263 since
the benefits from abatement programs are diffuse, govern-
ment funding seems appropriate.
Federal abatement activities date back to
mine seal projects started in 1935. Following the World
War II hiatus there were no government sponsored reclama-
tion and abatement activities until Pennsylvania enacted
the Coal Mine Sealing Act in 1947. This led to construc-
tion of approximately 900 seals on unused coal mines.264
More recently in 1968 Pennsylvania floated bonds and
created a fund to be used not only for sealing but also
for restoration of strip mined land.265 In addition,
Maryland, acting pursuant to the impetus of possibly
75% federal funding, has enacted enabling legislation to
carry out state sponsored reclamation and abatement
projects.266
The most direct constitutional limitations on
governmental action take the form of restrictions on the
ability of the states to incur debt. Borrowing for public
works projects got started in 1817 with New York state's
construction of the Erie Canal. Within five years after
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its completion (and financial success) Pennsylvania,
Maryland and Ohio were likewise borrowing money for
canal and railroad construction. When depression
times came in 1841 Maryland and Pennsylvania defaulted
on their debts along with seven other states.267
This bad debt experience led to state consti^
tutional restrictions on the debt-incurring powers of the
state legislatures. The provisions adopted in Ohio,
Pennsylvania and West Virginia ostensibly prohibited all
debt incurrence except for narrowly limited purposes; the
provision adopted in Maryland limited the term of state
debts to fifteen years (thereby limiting the efficacy of
state obligations for long-term borrowing).268
As is so often the case what the states were
forbidden to do by one method they managed to do by
another. Through a process of constitutional trial and
error the states have gotten judicial approval for various
methods of long-term financing of capital projects. In
Ohio and West Virginia this may be accomplished through the
use of revenue bonds provided that they are to be paid
from an earmarked fund rather than general revenues.269
In Maryland the fifteen-year debt limitations can like-
wise be avoided.270 In Pennsylvania debt restrictions
may be avoided through the creation of an independent
public corporation which then incurs the requisite
debt.271
Use of these tactics of constitutional circum-
vention for novel purposes obviously involves a risk.
In the absence of a test case providing judicial appro-
val, the bonds may be unmarketable. Hence, neither
Pennsylvania nor Maryland, the two states which have
already enabled the floating of bonds for reclamation and
abatement purposes, has made use of the evasionary tactics.
In Maryland the legislation authorizing flotation of five
million dollars worth of bonds respects the fifteen-year
maturity limit.272 jn Pennsylvania the constitution was
amended to permit creation of a 500 million dollar conser-
O"7 O
vation and reclamation fund.
Assuming that they can overcome these debt
restrictions the states are faced with two related ques-
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tions: Should the states acquire title to the land upon
which the project is being constructed? and if they do not,
should the states assess the private landowners for the
value of the project constructed on his land? With ref-
erence to most publicly constructed capital projects these
questions answer themselves. When the state constructs a
sewage treatment plant or a bridge, it takes title and
assumes possession of the land involved as a concomitant
to maintenance and operation. Mine acid treatment
facilities, such as the pilot plants constructed in
Pennsylvania pursuant to Operation Yellowboy, fit within
this model. But mine seal projects do not present the
same necessity since all that is needed is access during
construction and an opportunity for periodic maintenance
thereafter. Likewise, the appetite of the states for
recreational lands and open space is unlikely to be great
enough to justify public ownership of all surface mined
land which is restored.
When a municipality constructs a sidewalk it does
not usually acquire title to the land used, but the cost
is typically assessed to the landowner on the theory that
he is benefitted. This assessment is often treated as a
lien against the property which may be collected when the
property is transferred, if not previously paid. Similar
treatment of public costs occasioned in construction of
mine seals or in reclamation of surfaced mined land would
have a significantly different economic impact. The cost
of sidewalk construction is ordinarily small when juxta-
posed against the overall value of the benefitted land.
But the cost of a mine seal or surface reclamation is
often greater than the value of the benefitted land.
The Federal Water Pollution Control Administration
estimates $600 to $2000 per seal with an average of
$1300; Department of Agriculture sources estimate the
cost of restoring stripped land at between $1800 to
$3000 per acre.2'^ Considering that maximum value of
Appalachian farm land is probably less than $50 per acre
acre,275 the magnitude of this gap becomes clear. Hence,
assessment of costs against private landowners and
enforcement through liens on the land) would indirectly
result in large-scale public acquisition of the land
through foreclosure.
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The foregoing serves as background for the
constitutional dilemma which states face when directly
investing in abatement and reclamation projects. Water
in more than 5,000 miles of streams in Appalachia are
polluted by acid mine drainge; 800,000 acres of Appal-
achian land have been disturbed by strip mining.276
State government may wish to acquire property rights to
much of the land and water as part of the reclamation
and abatement process for essential use as parks or rec-
reational areas. But it is obviously neither desirable
nor politically feasible for government agencies to
acquire and keep all the land and water. With reference
to the surfeit, the states have a choice — they may
either initially acquire the private property rights
involved and then sell them back to the private sector
after the abatement or reclamation is completed, or
merely with the permission of the private property owners,
enter and complete the project without property trans-
fers. Both alternatives present constitutional difficul-
ties. If the state takes property with an intention to
later transfering it back to the private sector, consti-
tutional questions arise as to whether the taking was
for a "public use;" if the state engages in abatement or
reclamation without acquiring the private property
interests involved, the questions arise as to propriety
of the conference of betterments on private landowners.
1. Public Use
The United States Constitution does not contain
an express provision which prohibits the states from taking
private property for any purpose other than public use.
A reference to "public use" is contained in the Fifth
Amendment ("nor shall property be taken for public use,
without just compensation") but it is well established
that this provision only applies to the Federal Government
and is not applicable to the states.277 However, the
''public use" notion has been imputed into the Fourteenth
Amendment which does apply to state action.278 Therefore,
as a matter of federal constitutional law, a state may
employ the power of eminent domain only when the taking
is to be for a "public use."
Problems arise with the definition of the
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word "public use." Text writers indicate that there
are two views as to the meaning of the term. The narrow
view insists the meaning to be:
"...'use by the public1, that
is public service or employ-
ment, and that consequently
to make a use public a duty
must devolve upon the per-
son or corporation seeking
to take property by right
of eminent domain to furn-
ish the public with the use
intended, and the public
must be entitled as of right,
to use or enjoy the property
taken. The term implies the
'use of many1 or 'by the
public.'"279
The more liberal view contends that it means:
"...'public advantage,' and
that anything which tends to
enlarge the resources,
increase the industrial
energies, and promote the
productive power of any con-
siderable number of the
inhabitants of a section
of the state, or which leads
to the growth of towns and
the creation of new resourc-
es for the employment of
capital and labor, manifest-
ly contributes to the general
welfare and the prosperity
of the whole community and
giving the constitution a
broad and comprehensive
interpretation, constitutes
a public use."28°
Considering these two viewpoints it would seem that the
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narrow interpretatian would not allow the taking of prop-
erty for abatement or reclamation purposes and then sale
to private individuals. But arguments can be made that
such action falls within the broad view of "public use."
For the last 75 years the Supreme Court has adopt-
ed the liberal view and been satisfied if the governmental
action be justified as fulfilling a "public purpose."
For example, in Fallbrook Irrigation District v. Bradley
decided in 1896, the court upheld imposition of assess-
ments on private property for the purpose of creating
irrigation districts since the irrigation of acid lands
serves the public interests. And in Berman v. Parker,282
decided in 1954, the court upheld the constitutionality
of the condemnation of land in the District of Columbia
for urban renewal purposes, notwithstanding the fact that
plans provided for sale or lease-back of the land to
private parties, after redevelopment.
The constitutionality of exercises of the condem-
nation power are likewise subject to review under state
constitutions. The constitutions of the four states, with
varying degrees of explicitness, limit exercises of
condemnation power.283 since the Fourteenth Amendment
merely establishes minimum requirements, the state consti-
tutions also must be reviewed to determine whether they
take a more restrictive view as to what constitutes a
permissible use of the power of eminent domain.
Maryland
The Maryland Constitution contains a specific
provision which sets forth the requirements for the exercise
of eminent domain:
"The General Assembly shall
enact no Law authorizing
private property, to be
taken for public use, with-
out just compensation, as
agreed upon between the
parties, or awarded by a
Jury being first paid or
tendered to the party
284
entitled to such compensation."
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The case law has consistently assumed that this provision
precludes taking for a private use,285 but there has been
some vacillation as to what constitutes a public use.
Prior to the turn of the century the Maryland
Court of Appeals said:
"The term 'public use' is
flexible and cannot be
confined to the use known
at the time of the framing
of the Constitution. All
improvements that may be
made, if useful to the
public, may be encouraged
by the exercise of eminent
domain. Any use of any-
thing which will satisfy
a reasonable public demand
for facilities, for travel,
for transmission of intel-
ligence, or of commodities
would be a public use."28^
Despite the breadth of this language, in subsequent cases
the court has limited the condemnation power to instances
where the public could physically use what was taken. The
court justified adoption of the narrower definition with
the following statement:
"In this State we have held that
the words 'public use1 as
written in our Constitution,
mean use by the public. We
hold this view for three
reasons: (1) It is the
primary and more commonly
understood meaning of the
words. (2) At the time of
the adoption of the second
Constitution of 1851, the
first of our organic instru-
ments to contain a limita-
tion upon the power of
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eminent domain, as well as
the third Constitution of
1864 and our present Con-
stitution of 1867, there
was no practice in Mary-
land showing a contempo-
raneous construction that
the term 'public use'
imported public benefit.
(3) Our definition furn-
ished a more definite
907
guide for the courts."*0/
This circumscription on the power of eminent
domain has in the past interfered with public works
projects. When the city of Baltimore decided to engage
in urban renewal activities (involving acquisition,
improvement and sale of blighted property) an amendment
to the Maryland Constitution was necessitated.288
Although under this constitutional provision "the
fact that after the taking the property may be put into
private hands does not destroy the public character of
the taking insofar as that taking may accomplish a
proper public benefit,"289 the provision is of no help
in plotting abatement and reclamation strategies, since
it only applies to Baltimore City.
In its most recent pronouncement the Maryland
Court of Appeals has reaffirmed that in contexts other
than urban renewal in Baltimore City the Constitutional
"test of public use...was and is use by the public, rather
than use benefiting the public."290 Hence, in Maryland a
constitutional amendment would seem prerequisite to an
abatement or reclamation program involving transfer of the
restored areas back to the private sector.
Ohio
The Constitution of Ohio contains the following
provision:
"Private property shall ever
be held inviolate but sub-
servient to the public wel-
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fare. When taken in time of
war or other public exigency,
imperatively requiring its
immediate seizure or for the
purpose of making or repair-
ing roads, which shall be
open to the public, without
charge a compensation shall
be made to the owner, in
money, and in all other
cases, where private prop-
erty shall be taken for
public use, a compensation
therefore shall first be
made in money, or first
secured by a deposit of
money; and such compensa-
tion shall be assessed by
a jury, without deduction
for benefits to any property
of the owner."291
Case law indicates that this power of eminent domain can-
not be exercised to take private property for a private
use, 292 kut the question remains as to what constitutes
a public use.
In early decisions the Supreme Court of Ohio
interpreted the phrase "public use" to mean use by the
public. For example, in Pontiac Improvement Co. v. Board
of Com'rs, decided in 1922, the court struck down an
attempted expropriation with the following statement:
"...Where private property is
taken against the will of the
owner under the power of
eminent domain, it is prereq-
uisite that possession, occu-
pation, and enjoyment of the
property by the public or by
public agencies is sought and
is necessary.
"The natural import of the
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words, 'taken for public use,1
used in our Constitution, is
that the thing is to be used
by the public or by some
public agency for the public."293
The Ohio Supreme Court broadened its definition
of public use in 1953. In State v. Rich294 the court
dealt with the constitutionality of a Cincinnati urban
redevelopment project. Under the project the city was to
acquire all the land in the project area, demolish and
remove existing buildings, conduct certain improvements
and make the land available for redevelopment by private
enterprise or public agencies. The city could sell,
lease or retain the land. Certain city officials refused
to execute a necessary loan for project on the grounds
that it was an illegal expenditure of public funds. The
principal contention of the officials was that urban
redevelopment was not a public use for which public funds
could be expended and the power of eminent domain exercis-
ed. It was argued that the taking was for a private use
since the land appropriated was to be subsequently turned
over to private parties who would use the land for private
purposes and profit.
The Supreme Court first turned to the meaning
of the words "public use." The court stressed the first
sentence of Article I, section 19:
"Private property ought and
shall ever be held inviolate,
but always subservient to
the public welfare, provided
a compensation in money be
made to the owner."
Great emphasis was given to the use of the word "public
welfare," and the court concluded that the latter use of
the phrase "taken for public use" in section 19 meant the
same as "taken for the public welfare." Ppntiac Improve-
ment Co. v. Board of Comm'rs was then overruled to the
extent it conflicted with this view.295 Subsequent cases
have reaffirmed that all that need be demonstrated to
justify an expropriation is a nexus between the govern-
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mental program and a legitimate public goal. Hence, in
Ohio it seems clear that it is constitutionally permissible
to use condemnation powers in reclamation and abatement
projects even though the bulk of the property taken will
be subsequently sold back to private owners.
Pennsylvania
The Constitution of Pennsylvania contains the
following provision dealing with the power of eminent
domain:
"...nor shall private property
be taken or applied to public
use, without authority of law
and without just compensation
being first made or secured."296
As in other constitutions there is no express prohibition
against the taking of private property for a private use,
but the cases indicate that it cannot be done.297
The Supreme Court of Pennsylvania's interpre-
tation of the term "public use" is subject to the same
vicissitudes as it is in Maryland and Ohio. The
earlier cases seem to adopt the narrow interpretation
of "use by the public," whereas the later cases seem
to have swung towards the more liberal view of public
benefit. It is perhaps best to look at both lines of
cases in order to best determine what the Supreme Court
of Pennsylvania's present approach is likely to be.
The strictest expression of the narrow interpre-
tation of the term "public use" is contained in Pennsylvan-
ia Mut. Life Ins. Co. v. City of Philadelphia.29^The
city of Philadelphia was building a parkway under a state
statute which authorized the appropriation by cities of
private property for building parkways. Pursuant to this
authority the city passed an ordinance expropriating cer-
tain property bordering the parkway. The ordinance author-
ized the Mayor to sell the condemned land to Bell Tele-
phone subject to certain use restrictions.
The Supreme Court of Pennsylvania started off by
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declaring that private property could only be taken for
a public use. It went on to define "public use" as being
restricted only to "use by the public." In justification
the court observed that if they were to adopt the broader
view there would be "no limit to the power of either the
legislature or the courts to appropriate private property
to public use, except their individual opinions as to
what is and what is not for the public advantage and util-
ity. " The court then held the use contemplated was not a
"public use" since the city was not to own the land and
had only very limited control over it.^"°
However, when the same question rose in the
urban renewal context the court adopted the opposite
tack. Following World War II, legislation was passed
establishing a Philadelphia Housing Authority with auth-
ority to engage in slum clearance. It was contemplated
that the Authority would acquire property by either pur-
chase, gift, or eminent domain and improve it, or trans-
fer it to a redeveloper, who could be individuals, part-
nerships, or public or private corporations. It could
also borrow from private lenders or from government
funds. Plaintiff attacked the constitutionality of
this scheme.
One of the objections to the constitutionality
of the law was the feature that allowed the sale of the
property acquired by eminent domain. It was claimed
that would be taking property from one individual and
giving it to another. The Supreme Court of Pennsylvania
pointed out that this did not violate the "public use"
restriction. The public purpose did not require contin-
uing ownership by the Authority, for it consisted of
clearance, reconstruction and rehabilitation of the
blighted area. Once this was accomplished the public
purpose would be completely realized. The court said:
"When, therefore, the need
for public ownership has
terminated, it is proper
that the land be re-trans-
ferred to private owner-
ship, subject only to such
restrictions and controls
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as are necessary to effec-
tuate the purpose of the act.
It is not the object of the
statute to transfer property
from one individual to anot-
her; such transfers, so far
as they may actually occur,
are purely incidental to the
accomplishment of the real or
fundamental purpose."300
The court, furthermore, pointed out that if the public
good is enhanced, the taking does not lose its public
character merely because there is some element of private
benefit in the operation.
Most recently, in 1968 the Pennsylvania Supreme
Court reaffirmed its proclivity to permit condemnation of
land if concomitant to reasonable public work projects.301
Hence, it appears likewise likely that expropriations for
abatement or reclamation purposes would pass constitutional
muster notwithstanding plans to eventually transfer the
property involved back to the private sector.
West Virginia
Article III,section 9of the West Virginia Consti-
tution contains the following provision:
"Private property shall not be
taken or damaged for public
use, without just compensation...
and when private property shall
be taken, or damaged for public
use, or for the use of such
corporation, the compensation
to the owner shall be ascertain-
ed in such manner, as may be
prescribed by general law."
In the 1883 case of Varner v. Martin, the West Virginia
Supreme Court determined that this language precluded the
expropriation of property for anything other than use by
the public.302 ^lie court went on to find that a public
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use ordinarily involved giving the general public physical
access to the taken property and not merely some "public
utility or usefulness in its most general sense."
Subsequent cases decided in the early 1900's
reaffirmed this restrictive definition of a "public use."
For example, in Hence v. Pritt the court said:
"...the use which the public
is to have of the property
condemned must be fixed and
definite, and the general
public must have a right to
a definite and certain use
thereof."303
Since 1914 there have been no reported West
Virginia condemnation cases defining "public use." All
of the cases that arose before that point in time dealt
with the propriety of delegating expropriation powers
to private or semi-private businesses. Abatement and
reclamation projects raise a distinguishable problem
since the actual condemnation will be by an admittedly
public agency and the public use issue only arises because
of plans to eventually transfer the property back to the
private sector.
The dearth and distinguishable nature of these
authorities leaves open the constitutionality of condem-
nation-reclamation-re-sale type projects. Several factors
can be developed in their favor. First, in dicta long
ago the court determined that there is a presumption
of correctness in favor of a legislative determination as
to what constitutes a public use.3^ Second, urban re-
development legislation which likewise fits within the
above model, has existed in West Virginia for two decades
without effective challenge.305 Hence, in West Virginia,
the propriety of condemnation proceedings pursuant to
abatement and reclamation is in doubt.
2. Conferring Betterments
In Ohio, Maryland, and Pennsylvania as a legacy
of the previously discussed canal and railroad "boom and
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bust," there are constitutional limitations on the extent
and manner in which private landowners may be benefitted.
The provisions in the constitutions of Ohio and Maryland
are similar. Both attempt to preclude state subsidiza-
tion of private business by prohibiting the state from
giving or lending its credit to such concerns.306 In
addition, indirect subsidization is precluded in Maryland
by a prohibition against constructing "internal improve-
ments," and in Ohio by a prohibition against the state's
borrowing money to construct "internal improvements."307
Pennsylvania has a less pervasive constitutional provision
which prohibits the state from serving as a surety for,
or investing in private businesses. ° West Virginia has
only the blanket prohibition against debt incurrence which
has been previously discussed.
These provisions, if literally enforced, could
significantly limit the ability of the states to deal with
the problems of mine acid and surface scars. Maryland,
Ohio and Pennsylvania are ostensibly precluded from deal-
ing with these problems through incentives, grants or
guarantee of loans for private operators. The case law,
however, has in some measure removed the bars. The Mary-
land Court of Appeals has upheld the constitutionality
of legislation creating a Maryland Industrial Development
Authority with power to insure payment of mortgage loans
used for privately held industrial projects, so long as
the credi t of the state does not stand behind the promise
to insure payment. In Pennsylvania the Supreme Court
upheld the constitutionality of an industrial development
authority with power to directly finance construction of
private industrial facilities through issuance of tax-
exempt state revenue bonds on the theory that such bonds
did not constitute a debt of the state. ^ The Ohio and
West Virginia courts have likewise accepted the revenue
bond as a method for permitting state incentives without
incurring state "debt."312
The additional provisions of the Ohio and Mary-
land constitutions present special problems. The Ohio
constitution explicitly provides that "the state shall
never contract any debt for purposes of internal improve-
ment. "313 when the Ohio legislature created a Development
Credit Corporation with authority to provide incentives
to private industry it did so through passaae of a con-
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stitutional amendment.314 Therefore, a constitutional
amendment would likewise be a prudent precedent to any
state financing role in surface reclamation, sealing or
construction of mine acid treatment facilities.
Similar problems are broached by the language
of the Maryland Constitution prohibiting state involvement
in construction of "works of internal improvement."315
Literally construed, this language would seem to preclude
any state role, direct or indirect, in reclamation and
abatement activities, but the case law indicates to the
contrary. Over the years the Maryland Court of Appeals
has emasculated the provision by finding the following not
to be "works of internal improvement:" public roads;316
drainage and sewage systems;317 bridges;318 universities;319
hospitals. 320 Tne court limited the term to railroads and
canals, those works which:
"...were such as the State has
been connected with or inter-
ested in as 'stock-holder,' or
'creditor1 — such as had
driven it to the very verge
of bankruptcy and repudiation—
and not such as every State
government must have, either
in its own name or in the
names of its 'political
agencies, created for the
better government of the
affairs of the State1 "321
Within this definitional framework it is easy to justify
the constitutionality of abatement and reclamation acti-
vities by the State of Maryland.
Hence, all four states have anachronistic
limitations on legislative powers, coupled with judicially
developed means of avoidance. Notwithstanding the avail-
ability of this evasionary tactic there are several advan-
tages to constitutional amendment as a preliminary to
public expenditures to eliminate the external effects
from coal mines. First, most of the evasionary tactics
involve the. use of revenue bonds payable from an earmarked
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revenue source rather than from general revenues. The
use of revenue bonds rather than full faith and credit
bonds may significantly increase the cost of borrowing.
Second, since all of these tactics involve a high degree
of judicial casuistry and a low degree of judicial candor
they are unreliable until specifically approved. Although
courts in past contexts may have said that the debts of
a legislatively created authority are not debts of the
state, that the legislatively authorized issuance of bonds
repayable from the revenue from the turnpikes, bridges,
or treatment facilities does not constitute creation of
a state debt, and that sewage treatment facilities, hos-
pital and highways are not works of internal improvement,
there is no guarantee that they will continue these
conceits into the future.
There is another restraint on state acid abate-
ment activities on privately held land in addition to
these constitutional strictures. Section 14 of the Fed-
eral Water Pollution Control Act provides for 75% federal
funding of acid or mine water pollution demonstration
projects. An express condition to the availability of
federal funds provides:
"that the State or interstate
agency shall provide legal
and practical protection to
the project area to insure
against any activities which
will cause future acid or
other mine water pollution."328
Although the question of exactly what constitutes "legal
and practical protection" remains unanswered, certainly
one way in which the states can provide it is through
continuing public ownership of the area.
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VII
COAL MINING IN MARYLAND: AN
ECONOMIC CASE STUDY
A. Introduet ion
In the present public debate over the approp-
riate legal response to the environmental problems res-
ulting from coal mining, conflicting, sometimes strident,
views may be heard. Spokesmen for the coal industry,
while admitting the need for some minimal state inter-
vention, decry both the possibility of federal laws and
the ability of the coal industry to pay the price of
stringent abatement and reclamation procedures. Carl
E. Bagge, President of the National Coal Association,
has noted that the states rather than the federal govern-
ment should be encouraged to enact laws requiring reclama-
tion following surface mining since state authorities
are most familiar with their particular areas of concern
and best qualified to establish specific criteria.324
John W. Mullan, the environmental affairs director of
the National Coal Association, has said that mining pol-
lution standards are too strict and that:
"it is easy to say that industry
should pay the research and
operating costs of cleaning up
its own pollution, but industry
doesn't have unlimited funds
for pollution abatement any
more than government does."325
The frontal attacks on the mining industry have
been directed more at surface mining than at underground
mining. The choice of the primary target appears less a
product of analysis of the comparative environmental ills
of the two coal-taking methods than a response to the
high degree of visibility of surface scars. Arguments
can be made that surface mining results in the lesser of
the two sets of environmental evils: surface mining
results in the effective taking of a significantly greater
percentage of the usable coal than does underground mining;
surface mining presents significantly fewer safety hazards
to miners — fewer cave-ins, black lung disease and
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explosions; more than 71% of the acid drainage in Appal-
achia comes from underground mines.326
But there is no denying the ugliness that fol-
lows as an aftermath of surface mining operations.
Environmental Action magazine has characterized strip
mining as "an ecological catastrophe."327 The Wall Street
Journal has poetically discussed the effect of stripping
on the Ohio Valley as follows:
"Hundreds of acres, often as
far as the eye could see,
were chewed up and spit out
by giant power shovels,
leaving a terrain of jagged
rock, deep trenches and
mountains of raw, desolate
earth."328
Opponents of surface mining likewise downgrade the effect-
iveness of reclamation work pointing out that some 3000
square miles of America have been strip mined and only
about one-third of this land has been given any reclamation
at all.329 Moreover, their attitude toward reclamation
work when done is well summed up by Ohio Governor John J.
Gilligan who termed reclamation work as "cosmetic treat-
ment which leaves land useless for recreation or
anything else."330
B. Ambit of the Study
The aim of this study is to subject several of
the propositions found in the public debate, to economic
examination. First, will imposition of the costs of pol-
lution abatement reclamation on the mining operations cause
severe financial hardship on the industry and result in
substantial curtailment of production? Second, is the
best way to deal with pollution and aesthetic degradation
caused by coal mining, to simply prohibit coal mining?
It is important to clearly anticipate the limi-
tation implicit in the study. The data used related
only to the bituminous coal industry in western Maryland.
The Maryland coal industry differs substantially from the
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industry in Ohio, Pennsylvania and West Virginia. It
is not a large industry, producing less than one half of
one per cent of the bituminous coal mined in the United
States and employing less than 0.02 per cent of the total
Maryland work force. In addition, the mining operations
are themselves small in scale and use relatively small
equipment. While in the Ohio flat coal lands a drag line
can gulp out 250 cubic yards in a single scoop, Maryland
drag lines have a maximum capacity of 12 cubic yards.
Hence the transfer value of economic conclusions based
on the Maryland data is problematic.
Moreover, the conclusions to be drawn from the
economic analysis are themselves limited. At the root
are always choices between basic societal values which
must be politically (not economically) resolved. Not-
withstanding these limitations it is hoped that the study
has value. It establishes a methodology which may be
employed in analyzing the coal industries in other states.
Most important, it more precisely frames the questions —
segregating perceived economic effects from the basic
value choices lurking beneath.
At this point a brief statement of the organi-
zation of the chapter may be helpful. Immediately follow-
ing is a brief introduction to the economic terms to be
used. Next is an overview of the Maryland coal mining
industry and recent pollution abatement legislation.
Following the overview, the chapter deals with general
industry characteristics such as production, employment,
revenue and costs. The ensuing section contains a dis-
cussion of the mining external diseconomies and the legis-
lation designed to internalize them. It is divided into
three subsections. The first presents the mining external
diseconomies, the second discusses the legislation and
gives our estimates of the costs imposed on the operators
by the law, while the third draws together the material
from the preceding sections and presents our assessment.
C. Economic Terminology
The following interrelated economic concepts
are useful in analyzing the relationships among the coal
industry, environmental pollution and recent abatement
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legislation: "external economies" and "external dis-
economies," or simply "externalities." External economies
or diseconomies are benefits or costs affecting parties
not immediately involved in a particular process and over
which they have no direct control. They are called
externalities because they operate outside the direct
economic considerations of those who cause them. The
classic example of an external economy is that of the
beekeeper and his neighbor, the apple grower. The bees,
in gathering nectar, pollinate the apple blossoms.
Thus, the beekeeper by locating his hives near the orchard
helps to confer an external economy on the apple grower
since, of course, the apple grower does not pay for the
pollination services of the bees. The classic example
of an external diseconomy is air pollution in the form of
smoke from a factory. The smoke may impose real costs
on the surrounding countryside in terras of increased
cleaning expenses, poorer health, damaged vegetation,
etc., but these costs do not appear on the accounting
books of the factory. The salient characteristic of ex-
ternalities is that they provide real benefits or impose
real costs on third parties but these benefits or costs
are not directly considered in the economic calculations
of the one who produces them.
Externalities are particular problems with
"common property" resources. Common property resources
are those over which no one has exclusive property rights.
The atmosphere, water in a stream, most oil deposits and
the stock of wild animals are common examples. An example
of an external diseconomy related to a common property
resource occurs when a person upstream dumps waste into
the stream thereby damaging property and/or imposing larger
water treatment costs on the downstream user.
These particular types of externalities arise
because of a given institutional structure. Institutional
structure refers to the complex of laws, rules, regulations
and customs within which social, political and economic
activities operate. By changing the institutional structure,
one can frequently force the producer of an external dis-
economy to "internalize" the costs, i.e., bear the burden
of reducing the externality, so that the costs become part
of his direct economic calculations. By way of summary,
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if a legislature passed a law requiring mine operators
to treat polluted mine water before discharging it into
a stream, an economist might say that the government had
changed the institutional structure to force the mine
operators to internalize an external diseconomy associated
with a common property resource.
D. Overview
In Maryland today, commercial bituminous coal
mining is conducted exclusively in Allegany and Garrett
counties — the two westernmost counties of the state
sandwiched between Pennsylvania on the north and West
Virginia on the west and south. The North Nranch of the
Potomac River forms the boundary between Maryland and
West Virginia downstream from Kempton, Maryland until it
is joined by the South Branch to form the Potomac River.
A federal report has described these coal lands as
follows:
"The coal bearing area of the
North Branch basin lines in a
continuous trough-shaped valley
about 80 miles long, oriented
in a northeast-southwest dir-
ection. The North Branch flows
northeast through the center
of the basin for almost two-
thirds of its length. The
northeast part of the valley
is drained by Georges Creek,
which flows southwest through
the center of the valley to
join the North Branch at
Westernport. The coal-bearing
region southwest of Western-
port is known as the Upper
Potomac coal fields. The
coal region drained by Georges
creek, Savage River, and two
small tributaries of Wills
Creek is known as the Georges
Creek coal field. Coal is
mined from the Pittsburgh,
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Tyson, Bakerstown, Waynes-
burg, Freeport, and
Kittanning coal seams.
"Coal has been mined in the
North Branch basin for about
150 years. Maryland's peak
production of coal occurred
in 1907, earlier than any
other major coal-producing
state."331
Presently, coal is mined by all three major
production methods — underground, strip and auger. Total
1970 production was 1,467,003 tons while total employment
was 361. ' Neither this production nor that of the pre-
ceding decades was costless. Some of the benefits and
costs of producing coal have been reflected through the
years in the price at which coal was sold. However,
because of the market imperfections which economists have
dubbed external economies or diseconomies, not all the
benefits and costs of coal production have been reflected
in the market price because these externalities do not
directly enter the cost calculations of the producer or
purchaser in question.
As another example of this concept, let us take
an external diseconomy associated with past coal production
As mentioned above all production costs have not always
been included in the market price. Thus, in making
his cost calculations, the coal producer considered the
costs of lumber and labor as well as the costs of equip-
ment and entrepreneurship but not the costs to the environ-
ment. Until fairly recently, nearly everyone considered
the assimilative capacity of the environment to be a
"free" common property resource. But when this assimil-
ative capacity was exceeded, society did not have a well-
organized framework with which to deal with the problems
thus created.
Therefore, the coal producer did not consider
the costs to the environment because neither market forces
nor the existing institutional structure required him to
do so. In an attempt to require the coal producers to
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"internalize" these diseconomies, governments passed
new legislation concerning environmental pollution.
The State of Maryland has had laws dealing with
environmental pollution for some time. However, in 1967
a revision of the laws dealing specifically with strip
and auger mining established a Land Reclamation Advisory
Committee and placed more emphasis on environmental con-
siderations. This subheading was revised in 1969 and again
in 1971. In addition to the Land Reclamation Committee
ana requirements for licenses, permits and reports, the
present law provides for a general reclamation bond of
$400 per acre of land affected, a revegetation bond of
from $50 to $125 per acre depending on conditions and a
reclamation fee of $30 per acre to be deposited in the
Bituminous Coal Open Pit Mining Reclamation Fund. The
state also has laws establishing water quality standards
and controls on sedimentation. All these laws provide
penalties for failure to comply. Since we are interested
in the effects of such legislation, we will be dealing
with data from the last half of the 1960's and 1970.
The following section presents a more detailed picture of
the Maryland coal mining industry.
E. Industry Characteristics
One ot the most striking facts about the bitum-
inous coal industry in Maryland is that it is relatively
insignificant in terms of total United States production of
bituminous coal. In the second half of the 1960's,
Maryland produced less than one-half of one per cent of the
bituminous coal mined in the United States.323 Total
production grew from 1,195,787 tons in 1965 to 1,467,003
tons in 1970. This indicates an average annual growth
rate of 4.2%. In this period strip mining became increas-
ingly important while the relative share of deep mining
declined. From 1965 to 1970 strip mining grew from 63%
to 76% of total production while other methods, mainly
deep mining, declined from 37% to 24% of production.^34
Another important item to note is employment in
coal mining. Again the figures are unimpressive. The
industry, in Maryland, employed 405 persons in 1965. This
figure decreased to 361 in 1970. Much of the decline is
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explained by greater mechanization which has caused pro-
ductivity to rise from 2953 tons per man in 1965 to 4064
tons per man in 1970.325 rpo give some perspective, coal
mining only accounted for about 0.02% of total employ-
ment in Maryland in 1970 while contributing no more than
1.5% to employment in Garrett and Allegany counties where
all of the coal mining takes place. 336
Having presented the general dimensions of the
industry, we now wish to estimate the benefits and costs
arising from coal mining in Maryland. As a conservative
measure of benefits, we have used the total revenue
generated by coal sales. We do this for the following
reasons.
Total revenue to a producer is calculated by
multiplying the quantity of the good sold by the price
of the unit of the good sold. This definition appears
straightforward; however, the unit price of the good
needs some interpretation. An individual is willing to
pay an amount equal to the benefits he derives from con-
suming a unit of a particular good. It is also generally
true, from the law of diminishing marginal utility, that,
after some point, the benefit derived from each additional
unit of a good consumed is less than that derived from
each of the preceding units. (The third piece of pie
provides less satisfaction than the first,) As a result,
the amount an individual is willing to pay for additional
units of a good declines. These facts are summarized in
an individual's demand curve for a good. A demand curve
shows the quantity of a good demanded at alternative
prices. Inversely, it shows the amount an individual is
willing to pay for each successive unit of a good, which
is to say it shows the marginal benefits derived from
each additional unit of the good.
As a simple example, consider Figure 1 in which
we have an individual's demand curve for a good (line dd).
140
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Price
5
4
2
1
FIGURE 1
Quantity
We measure price on the vertical axis and quantity on
the horizontal axis. We can see that at a price of $5
the individual demands one unit. This also means that
the individual derives benefits worth at least $5 from
the first unit of the good he consumes. We can see that
at a price of $3 the individual demands three units of
the good and also that the individual derives benefits
worth $3 from the third unit consumed. Now suppose the
producer of the good has determined that to maximize
profits, he should sell the individual three units. In
order to get the individual to buy the third unit he
will charge a price of $3 for that unit. But since all of
the units are interchangeable he can only charge a price
of $3 for the first and second units even though the buyer
would have been willing to pay $5 and $4 for the first and
second units respectively. So the unit price for all
units is $3 and this reflects the marginal benefit of the
last unit. In this case the producer has a total revenue
of $9 ($3x3 units) but the buyer derives benefits worth
$12 ($5 + $4 + $3). We can now see that if the demand
curve is downward sloping, total benefits must be worth
at least as much as the total revenue obtained by the
producer.
141
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Therefore, as a minimum measure of benefits,
the total revenue for the Maryland coal industry has been
calculated for each year from 1965 to 1970. These figures
as well as quantities and average yearly prices appear in
Table 6.
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TABLE 6
PRICE, QUANTITY AND REVENUE OF MARYLAND COAL INDUSTRY: 1965-1970
1965 1966 1967 1968 1969 1970
Price/ton
(dollars) 3.63 3.57 3.48 3.67 3.83 5.00
Quantity
(tons) 1,195,787 1,210,051 1,319.318 1,390,645 1,381,645 1,467,003
OJ
Total
Revenue
(dollars) 4,349,654 4,328,463 4,602,441 5,103,668 5,293,469 7,335,015
-------
The quantities are those reported in the annual reports
or the Maryland Bureau of Mines. The 1965 to 1969 prices
are the weighted average of the value of coal, f.o.b.
the mine, for Garrett and Allegany counties as reported in
the U.S. Bureau of Mines Min era1s Yearbook.337 These
values are weighted by county production figures of the
Maryland Bureau of Mines to yield the total revenue
figures. The 1970 price is an estimate based on prelimin-
ary data from reliable sources. The jump from the 1969
price of $3.83 per ton to the 1970 price of $5.00 per ton
is fairly dramatic but it was a trend that was experienced
by the entire coal industry. This was partially a result
of inflationary pressures in the economy as a whole but
was mainly a result of increased demand, especially foreign
demand for coal of all grades. In 1965 around 50 million
tons of coal were exported. In 1969 this had risen to only
about 56 million tons but jumped to almost 71 million tons
in 1970.338 i>he price has now leveled off somewhat and
people in the industry report that through the first half
of 1971 Maryland coal was selling for around $4.50/ton.
Opposed to benefits we have the costs of prod-
uction. These costs, in competitive markets, are a
measure of benefits that society foregoes by having
productive inputs producing a particular good instead of
some other good. This can be seen if one considers that
to keep inputs in a particular employment that employment
must pay them at least as much as they could make in their
best alternative employment. Income in the alternative
employment would reflect a factor's contribution to revenue
and revenue, as we have seen, is a rough measure of benefits.
So costs, like revenues, are a measure of benefits but in
this case benefits foregone.
The estimated cost per ton and total cost coal
operators in Maryland paid in each of the years 1965 to
1970 appear in Table 7. These costs presumably include
pollution abatement and reclamation costs, since the major
legal standards were in effect in 1967. More will be said
about this in the next section.
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TABLE 7
OPERATING COSTS OF MARYLAND COAL INDUSTRY: 1965-1970
1965 1966 1967 1968 1969 1970
Cost/ton
(dollars) 2.81 2.95 3.11 3.26 3.43 3.60
Total Cost
(dollars) 3,360,161 3,569,650 4,103,079 4,533,503 4,739,042 5,281,211
-------
The base for these calculations was the costs for Maryland
coal raining reported in the 1967 Census of Mineral Indus-
tries. 239 Dividing by quantity we determined a cost per
ton and on the assumption that this cost was growing at
about five per cent per annum during the period we were
able to derive a cost per ton for each of the respective
years. Multiplying cost per ton by each year's quantity
gave total cost.24^
The last item or the Maryland coal industry to
consider in this section is profit. Profit is the excess
of revenues over costs. However, part or all of what
we call profit is in fact a cost as it is the necessary
return needed to keep a coal operator's organizational
abilities and financial resources committed to coal
production and it is a legitimate part of the supply cost
of coal. The coal operator's return is calculated as an
annual rate by taking profit as a percentage of financial
outlay, i.e., costs. Profit and return to outlay are
shown in Table 8. Of course, not all of the profit shown
in Table 8 is a return to the operator as various taxes
must be paid from this amount. In the following section
some of the external diseconomies produced by the coal
industry, and the Maryland legislation designed to intern-
alize them are discussed.
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TABLE 8
PROFIT AND RETURN OF MARYLAND COAL INDUSTRY: 1965-1970
1965 1966 1967 1968 1969 1970
Before Tax
Profit (dollars) 989,493 758,813 499,362 570,165 554,427 2,053,804
Rate of Return 29.4% 21.3% 12.2% 12.6% 11.7% 38.9%
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F- Internalizing External Diseconomies
1. Diseconomies
As previously noted strip mining together with
auger mining is accounting for a progressively larger share
of total coal production in Maryland as well as nationally.
An important reason for this trend is that strip and auger
mining are extremely efficient mining methods in terms
of tons produced per man per day. They are also safer
than underground mining in terms of both fatal and non-
fatal accidents per million man-hours exposure. In
addition, strip mining is less wasteful than deep mining
in the sense that it permits nearly all the coal in a
particular seam to be recovered whereas underground min-
ing requires that some coal be left for support.
However, both surface and deep mining produce several
environmental problems which the recent Maryland legis-
lation is designed to correct.
In disturbing the natural landscape, unreclaim-
ed strip mines are eyesores and contribute to the aes-
thetic degradation of the environment. In addition, the
loose, unsorted piles of overburden lead to increased
soil erosion and sedimentation in the local drainage basin.
Furthermore, the spoil piles contain material which is
inflammable as is the exposed coal seam. Fires, once
started in these areas, are very difficult to extinguish
and result in air pollution and needless waste of res-
ources. Both deep and surface coal mining may produce
acid mine drainage. Acid drainage can render the receiv-
ing stream highly corrosive and taxic, thus limiting
recreational, industrial and other benefits to be derived
from the water.
2. Legislation and Costs Imposed
In an effort to deal with these problems, the
State of Maryland now has legislation regulating strip and
auger mining, and the effect on water quality of discharges
and sedimentation. (At the date of this writing, October
1971, the State has not yet enacted effective deep mine
legislation.) In order to strip mine, an operator must
obtain a license, apply for and receive a job permit for
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the specific area he wishes to mine, post performance
bonds for reclamation and revegetation, pay a special
reclamation fee and make several types of reports. The
license costs $100 initially plus $10 for annual renewal.
To receive a job permit the operator must submit a map
of the area as well as a detailed mining and reclamation
plan showing the manner, time and distance for backfilling,
drainage, planting and general reclamation of the area
affected. This application must be reviewed and approved
by the Land Reclamation Committee. The nine members of the
Land Reclamation Committee are: the Director of the Mary-
land Geological Survey, who acts as chairman; the chairmen
of the Soil Conservation District supervisors of Allegany
and Garrett Counties or their designated representatives;
two members appointed by the Governor to represent the
mining industry or their designated alternates; and the
Director or his representative of the following state
agencies: Fish and Wildlife Administration, the Department
of Forests and Parks, and Department of Water Resources
and the Bureau of Mines. This committee studies, recom-
mends and approves all procedures for reclamation, con-
servation and revegetation of areas affected by surface
mining within Maryland.
The performance bonds are of two types — a
general reclamation bond and another limited specifically
to revegetation. The general bond is $400 per acre of
land affected with a minimum of $3000. The revegetation
bond is from $50 to $125 per acre of land affected-depend-
ing on conditions. Both bonds may be those of a corporate
surety, cash, negotiable United States government secur-
ities or certificates of deposit of a Maryland bank.
In addition to the bonds, the operator must pay a special
reclamation fee of $30 for each acre of land affected to
the Bituminous Coal Open Pit Mining Reclamation Fund.
This fee is matched by the state and paid to the Fund.
It also receives revenues from the license fees and bond
forfeitures. The Fund is used by the Director of the
Bureau of Mines for reclaiming and planting abandoned
lands affected by surface mining of bituminous coal. The
operator must also make monthly and annual reports of
his operations. He reports on his progress in reclamation
and planting and prepares a final report upon the comple-
tion of the entire operation. This report must be approved
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by the Land Reclamation Committee.
In addition to the above laws, the mine oper-
ator must comply with rules and regulations issued by the
Maryland Bureau of Mines pursuant to the strip mining
laws. These regulations spell out in detail the general
requirements stated in the law.
By complying with the provisions of the legis-
lation, the mine operators have reduced the environmental
effects of surface mining. By restoring disturbed areas
to nearly the original contour and planting vegetation,
surface water courses are re-established, erosion and
sedimentation are diminished and the quantity of water
seeping to underground mines to reappear as polluted mine
drainage is reduced. By burying sulfur-bearing material
and low-grade waste coal as well as covering the exposed
coal seam during backfilling, acid formation and the pos-
sibility of fires are greatly reduced. Finally, by back-
filling, grading and planting, the mine operators help to
restore the natural appearance of the landscape. The
consensus of official and unofficial opinion is that
reclamation efforts pursuant to the present strip mining
law effectively combat mine acid drainage, and after the
hiatus required for revegetation to take root, effectively
restore the land to an aesthetically acceptable appear-
ance. 342 BUt the economic question remains, how much have
these efforts cost the mine operator?
The major costs imposed on the operators by the
strip mining laws and regulations are those associated with
backfilling and grading, with revegetation and with the
reclamation fee. Other costs attributable to the law, such
as licensing fees, additional mapping and surveying fees,
additional reporting costs and the opportunity costs of
the bonding requirement are probably relatively small when
compared to the total costs of the operation. The oppor-
tunity costs ot the bonding requirement merit an explana-
tion. Most corporate sureties in Maryland charge only a
one per cent fee on their bonds for strip mining. However,
because of poor past experience, they require collateral
in the amount of the bond. Thus, given the options open
to him, the rational mine operator would choose to fulfill
his bonding requirement with a certificate of deposit.
150
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His opportunity cost of doing this is the difference
between the amount of interest that the bank pays and what
he could earn with the money if he could invest it as he
wished.
The major cost items listed above have been
estimated by contacting members of the industry and of the
Land Reclamation Committee. The Maryland Bureau of Mines
has contracted to have abandoned mines adjacent to current
operations backfilled and graded. This procedure avoids
the substantial expense of transporting heavy equipment to
a site solely to backfill and grade an abandoned mine. An
average of these contract fees yields a cost of approxi-
mately $400 per acre to backfill and grade in 1970. This
estimate should be treated with some care since it is
based on a sample of only seven observations which ranged
from $120 to $1670 per acre. Conversations with industry
representatives and soil conservation officials indicate
that about $75 per acre was the average cost of revegeta-
tion in 1970. The reclamation fee is $30 per acre. Thus
the major costs imposed by the laws may be estimated to
have been about $505 per acre in 1970. Table 9 presents
some estimates of reclamation costs for the period 1967-
1970.
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TABLE 9
ESTIMATED RECLAMATION COSTS TO MARYLAND COAL INDUSTRY: 1967-1970
1967 1968 1969 1970
Acres Affected 287 554 388 390
M Cost/acre
ro (dollars) 435 460 480 505
Total Reclamation
Cost (dollars) 124,845 254,840 186,240 196,950
Reclamation Costs
as % of Total Cost 3% 5.6% 3.9% 3.7%
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The costs per acre for 1967 to 1969 were derived by
discounting the $505 for 1970 at a rate of 5% per annum
(the rate at which we assume costs to be increasing and
rounding to the nearest five dollars).
The Maryland water quality legislation must now
be considered. Maryland requires a permit to discharge
water-borne waste into state waters. Pollution of water
so as to change its temperature, taste, color, turbidity,
odor or normal pH value is thereby restricted. The main
water pollutant associated with coal mining is acid mine
drainage. To the extent that acid mine drainage does lead
to a loss of benefits from other uses, it must be consid-
ered as a real cost of producing coal. But most water-
ways are common property resources and producers consider-
ed them to be free resources, so costs imposed on down-
stream users were not taken into account. In recent years,
however, legislative action has enabled water quality
standards to come into being. These standards help to
avert damage to downstream users by forcing producers to
meet water quality standards, thus "internalizing" these
costs to the coal producing firm.
In reality, the costs imposed by these standards
on active producers in Maryland are probably very small.
Part of the reason for this is the level of pollution
that can be attributed to active mines. In 1967, for in-
stance, active mines in Maryland were responsible for only
about four per cent of measured acidity in the North Branch
of the Potomac, the rest coming from abandoned mines and
active mines in West Virginia.343 jn 1970 the Maryland
Department of Water Resources, in its survey of the more
than 70 active mines, found only fifteen with discharges
and of these only five failed to meet water quality stan-
dards. In addition, these discharges were mainly from
strip mines where, if acid drainage occurs, it is relatively
easy to remedy. This can generally be done by relocation
of some of the excavated material. When the strip opera-
tion is completed, the proper burial of sulfur-bearing
material during backfilling essentially eliminates the
danger of future acid drainage.
Abatement of acid drainage associated with deep
mining is probably much costlier than for strip mining.
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Here abatement would often entail water treatment while
the mine is active and sealing when the mine is abandoned.
The costs of treatment vary greatly depending on acidity,
volume of discharge and other factors, but would generally
be much more expensive than the remedies available to
strip miners. The cost of sealing also varies a great
deal depending on the particular circumstances of the
mine involved but, based on past data on sealing, the cost
of one seal was probably between $13,892 and $18,522 in
1970.344 since the purpose of sealing is to prevent oxygen
and surface water from coming into contact with sulfur-
bearing materials, all entrances to a mine require a
sea±. Maryland mine safety laws require a minimum of
three entrances, so by using the lower cost of $13,892
per seal, one obtains a conservative estimate of $41,676
as the cost of sealing a deep mine. This is a substan-
tial amount given the scale of Maryland mining operations.
However, given the declining importance of deep mining,
the low incidence of substandard acid drainage associated
with present active mines and, in some cases, the alterna-
tive of strip mining, these costs would rarely be incurred.
As a result, additions to industry costs are probably
negligible. The same conclusion holds for strip mining.
That is, given the low incidence of substandard drainage
and the relatively simple remedies, the costs added to
normal production and other reclamation costs by the water
quality standards are insignificant because they are usually
met by complying with the strip mining reclamation laws.
In order to control sedimentation, Maryland
requires a grading and sediment control plan from a regis-
tered engineer to be approved by the local soil conserva-
tion district before building or mining operations can
begin. Sedimentation is not a particular problem with
deep mining. It was a problem with surface mining but
current strip mining legislation and the attendant change
in mining practices have reduced erosion and sedimentation
resulting from the haulage roads used to bring the equip-
ment in and haul the coal out continue to cause concern.
The Land Reclamation Committee is currently considering
the problem. With the possible exception of the haulage
roads, however, the erosion control laws do not impose
significant additional costs on the mine operators since
they are usually satisfied by complying with the strip
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mining reclamation laws.
3. Assessment
Table 10 presents a summary of the data from the
preceding sections for the period 1967-1970. An examina-
tion of the table will indicate that production has been
generally increasing throughout the period as have prices
and therefore total revenue. However, costs have also
been increasing. Nevertheless, before-tax profits and
rate of return have a generally upward trend. The high
figures for 1970 are mainly attributable to the $5 price.
As noted earlier the present price of Maryland coal has
decreased to about $4.50. If the price does not decrease
further (and we have no reason to believe that it will),
the rate of return should remain at sufficiently high
levels to retain the operators in the industry.
The number of acres affected by coal mining
each year is variable but the estimated reclamation costs
per acre, reflecting higher labor and materials costs, have
been increasing. Reclamation costs vary relative to total
costs due in large part to the variability in the number
of acres reclaimed each year. However, reclamation costs
average in the neighborhood of four per cent of total
costs. Cost estimates were derived from the 1967 Census
of Mineral Industries^5 and should reflect true total
costs. However, inasmuch as the new reclamation laws
were just beginning to have an impact in 1967, the total
cost and the reclamation cost estimates have been summed
in order to obtain conservative estimates of profit and
rate of return. The 1967-69 figures would tend to indi-
cate a marginal return. However, because they are based
on a maximum cost estimate and given the handsome return
in 1970 (which should not diminish greatly with current
prices), the Maryland industry is probably earning a
sufficient return.
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TABLE 10
QUANTITY, PRICE, REVENUE, COSTS, PROFIT AND
RETURN OF MARYLAND COAL INDUSTRY: 1967-1970
1967
1,319,318
3.48
4,602,441
3.11
4,103,079
499,362
12.2
287
435
124,845
3.0
4,227,924
1968
1,390,645
3.67
5,103,668
3.26
4,533,503
570,165
12.6
554
460
254,840
5.6
4,788,343
1969
1,381,645
3.83
5,293,469
3.43
4,739,042
554,427
11.7
388
480
186,240
3.9
4,925,282
1970
1,467,
5.00
7,335,
3.60
5,281,
2,053,
38.9
390
505
003
015
211
804
196,950
' 3.7
5,478,
161
Quantity (tons)
Price/ton (dollars)
Total revenue (dollars)
Cost/ton (dollars)
Total cost (dollars)
Before tax profit
(dollars)
Rate of return (%)
Acres affected
Reclamation costs/acre
(dollars)
Total reclamation costs
(dollars)
Reclamation costs as %
of total costs
Total costs and reclama-
tion costs (dollars)
Before-tax profit (based
on total cost and reclam-
ation cost) (dollars) 374,517 315,325 368,187 1,856,854
Rate of return (%) (based
on total cost and reclam-
ation cost) 8.9 6.6 7.5 33.9
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G. Evaluation
Based upon the above analysis, answers can be
tentatively advanced to the two questions which were
originally asked. First, will imposition of the costs of
pollution abatement and reclamation on mining operations
cause severe financial hardship to the industry and
result in substantial curtailment of production? The
analysis answers this question with a no. The industry is
still thriving after four years of internalizing the
costs of reclamation. In response to the 1970 rate of
return some operators are buying new equipment. But sev-
eral caveats must be added. Due to present inadequacies
in Maryland's laws mining operators may not be effective-
ly forced to internalize the costs of remedying acid mine
drainage. More important, the above analysis has taken
no account of the possibility that evolving air quality
standards may indirectly depress the value of coal with a
high sulfur content.
Second, would prohibition be the best way to deal
with pollution and aesthetic degradation caused by coal
mining? Again our analysis answers the question with a no.
Even after reclamation costs are added to production costs
the coal industry produces profits and may be therefore
socially useful. But as is frequently the case, the
conclusiveness of the analysis is limited by the lack of
appropriate data. Because of data limitations, only
conservative estimates of the major costs and benefits
have been presented. Thus the additional costs to the
Bureau of Mines and other government agencies of implement-
ing and overseeing the application of the new laws were
not explicitly considered. Costs may also be attributed
to the severe, though temporary, degradation of the
region's scenic values which accompanies on-going mining
operations. To the extent that subsequent rehabilitation
fails to fully restore these values, some residual degrada-
tion may persist. The damage to the roads of the area
resulting from the movement of heavy equipment and trans-
portation of coal is yet another example of the costs which
were not explicitly considered.
Similarly, the benefits provided by the indirect
employment generated by the industry in the local consumer
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market were not estimated; neither was the industry-
generated employment on the railroads nor in the Port of
Baltimore. The benefits of tax revenues from the indus-
try were not considered.
It is a function of legislative bodies to quanti-
fy the unquantifiable. However, in deliberating a parti-
cular issue, it is incumbent on the legislators to con-
sider fully the values assigned implicitly in their deci-
sions. Specifically, in debating the issue of whether
continued mining should be permitted, legislatures should
weigh these implicit values against the estimates present-
ed above.
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VIII
MODEL STATE MINING AND
ENVIRONMENTAL QUALITY ACT
Introduction
The model statute which follows is designed to
give to state government .the powers necessary to deal
with adverse environmental effects from mining operations.
Several observations on the scope of the statute should be
noted at the outset. First, while this study has dealt
only with the environmental effects of coal mining, the
statute is designed to deal with the environmental effects
from virtually all mining operations. There are reasons
for so broadening the scope. Side effects from mining
operations are more alike than different, and in keeping
with current efforts to achieve greater integration with-
in the state administrative structure it seems generally
useful to group regulations under a single umbrella. But
the statutory structure created is flexible so that the
state Bureau of Mines created by the statute can through
its rule-making powers distinguish between various mining
operations where appropriate. This broader scope also
dovetails with the format of the Administration's "Mined
Area Protection Act" (H.R. 4967 and H.R. 5689) which is
now pending in Congress.
Second, the statute is jurisdictionally generic—
designed to be equally appropriate for Maryland, Ohio,
Pennsylvania and West Virginia. Such a non-parochial for-
mat necessarily imposes a limitation on the statute's
utility. It fails to adequately account for differences
that may exist from state to state. Hence the hard work
of integrating new administrative powers into the exist-
ing administrative apparatus (which this statute leaves
undone) may materially vary from state to state. Like-
wise, differences in the topography and in the nature of
the mineral resources of the several states may dictate
different responses. For example, Maryland has signifi-
cant holdings of sand and gravel in its tidelands which
might more effectively be regulated by the state's coastal
zone agency than by its Bureau of Mines. Finally, the
states have differing constitutions which variously limit
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state action, particularly with reference to expropriation
and financing powers. The commentary to the statute ear-
marks these particular problems. Notwithstanding this
limitation it is hoped that the model legislation will
prove adaptable, in whole or part, to the needs of all
four states.
In preparation of the statute, extensive use
was made of a draft of an unpublished document prepared
for the Department of the Interior: Guidelines for
State Environmental Regulations of Mining Operations
consistent with /'The Mined Area Protection Act of 1971"
(Sept. 15, 1971).
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MODEL STATE MINING AND ENVIRONMENTAL QUALITY ACT
Summary of Contents
ARTICLE 1 - BUREAU OF MINES
Part One - Purpose and Definitions
1.101 - Purpose
1.102 - Definitions
Part Two - Organization
1.201 - Creation
1.202 - Director
1.203 - Staff
1.204 - Advisory Committee on Environmental
Problems
Part Three - General Powers and Intergovernmental
Relationships
1.301 - General Powers
1.302 - Intergovernmental Relationships
ARTICLE 2 - REGULATION OF THE ENVIRONMENTAL EFFECTS OF
MINING OPERATIONS
Part One - Regulatory Power
2.101 - Scope of Regulatory Power
Part Two - Environmental Quality Standards
2.201 - Air Quality
2.202 - Water Quality
2.203 - Noise
2.204 - Subsidence and Land Slides
2.205 - Protection and Restoration of Surface
Part Three - Prohibition of Mining Operations
2.301 - Prohibition
2.302 - Appeal
Part Four - Responsibility for Violation of Regulations
2.401 - Mine Operators
2.402 - Holders of Interests in Mineral Rights
ARTICLE 3 - APPROVAL OF MINING OPERATIONS
Part One - Prior Approval
3.101 - Prior Approval Required
Part Two - Permits for Mining Operations
3.201 - Delineation of Mining Operations
3.202 - Requirement of Permit
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3.203 - Application for Permit
3.204 - Background Information
3.205 - Operating Plan
3.206 - Reclamation Plan
3.207 - Charge for Use of Bureau's Reclamation
Facility or Project
3.208 - Consideration of Application
3.209 - Payment of Charge to General Reclama-
tion Fund
3.210 - Rights Created by Permit
3.211 - Suspension and Revocation of Permits
3.212 - Inspection and Monitoring
3.213 - Performance Bond or Deposit
3.214 - Certificate of Reclamation
3.215 - Annual Reports
3.216 - Notice to Bureau
3.217 - Mine Maps
Part Three - Severance Tax
3.301 - Underground Mining Operations
3.302 - Surface Mining Operations
3.303 - Payment
3.304 - Deposit in General Reclamation Fund
ARTICLE 4 - PROJECTS AND FACILITIES
Part One - General Powers
4.101 - Programs
4.102 - Assistance and Training Programs
4.103 - Research
Part Two - Inventory
4.201 - Inventory of Mining Operations
Part Three - Acquisition, Construction, Operation
and Management of Reclamation Facilities
and Projects by the Bureau
4.301 - General Powers
4.302 - Acquisition
4.303 - Declaration of Public Purpose
4.304 - Exercise of the Power of Eminent Domain
ARTICLE 5 - BUDGETS AND FINANCING
Part One •<- Annual Budgets
5.101 - Capital Budget
5.102 - Current Expense Budget
Part Two - Abandoned Mine Reclamation Fund
5.201 - Loan
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5.202 - Bonds
5.203 - Sale of Bonds
5.204 - Sinking Fund
5.205 - Abandoned Mine Reclamation Fund
Part Three - General Reclamation Fund
5.301 - Creation and Purposes
5.302 - Source of Proceeds
ARTICLE 6 - GENERAL PROVISIONS
Part One - Administrative Procedures
6.101 - Rules and Regulations
6.102 - Notice
6.103 - Hearings
6.104 - Subpoenas
Part Two - Enforcement by the Bureau
6,201 - General
6.202 - Issuance of Compliance Orders
6.203 - Reclamation by the Bureau
6.204 - Right of Entry
6.205 - Injunctive Relief
6.206 - Civil Liability
6.207 - Penal Sanctions
Part Three - Relationship to Common Law and
Severability
6.301 - Relationship to Common Law
6.302 - Severability
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ARTICLE 1
BUREAU OF MINES
Part One
Purpose and Definitions
1.101 - Purpose.
It is the purpose of this Act to encourage the
economic development of the mineral resources of the
state in a manner which will preserve and enhance the
quality of the environment.
1.102 - Definitions.
For the purpose of this Act:
(a) "Bureau" means the Bureau of Mines created by
this Act.
(b) "Director" means the Director of the Bureau of
Mines.
(c) "person" means an individual, partnership,
corporation, joint stock company, firm, society, associa-
tion or other unincorporated organization, receiver or
trustee, and any officer, agent or employee of any of
the foregoing acting in his capacity as such, but does
not include governmental agencies or their officers and
employees.
(d) "governmental agencies" means the government of
the United States, this state and all other states, their
political subdivisions, and every department, agency,
commission and other unit or instrumentality thereof and
interstate compact commissions.
(e) "mining operations" means (i) activities con-
ducted on the surface or underground for the exploration
for or extraction of minerals from their natural occur-
rences, and (ii) the cleaning, concentrating, refining,
or other processing or preparation (excluding smeltering)
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and loading of crude minerals at or near the mine site,
and the disposal of refuse from such processing or pre-
paration. It does not include the extraction of minerals
in a liquid or gaseous state by means of wells or pipes
unless the process includes in situ distillation or
retorting.
(f) "underground mining operations" means mining
operations carried out beneath the surface by means of
shafts, tunnels, or other underground mine openings and
such use of the adjacent surface as is incidental there-
to; as well as activities related thereto.
(g) "surface mining operations" means mining opera-
tions carried out on the surface, including strip mining,
open pit mining, auger mining, dredging, quarrying, and
leaching, and activities related thereto.
(h) "mined area" or "area to be mined" means the
surface and subsurface of an area in which mining opera-
tions are being, have been or will be conducted including
private ways and roads appurtenant to any such area, land
excavations, workings, refuse banks, tailings, spoil banks,
and areas in which structures, facilities, equipment,
machines, tools or other materials or property which
result from, or are used in, mining operations are situated.
(i) "operator of a mining operation" means any per-
son or governmental agency controlling or managing a min-
ing operation.
(j) "reclamation" means activity which is taken
during or following a mining operation to avoid or correct
adverse environmental effects ot mining operations.
(k) "reclamation facilities and projects" means any
real or personal property, the improvements thereof or
thereon, and any and all rights of way, water, water rights,
plants, structures, machinery and equipment, acquired,
constructed, operated or maintained, and any work, ser-
vice or activity to avoid or correct adverse environmental
effects from mining operations. Reclamation facilities and
projects include, but are not limited to, the following:
(i) mine drainage treatment facilities; (ii) extinguish-
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ment of mine, outcrop and refuse bank fires; (iii) back-
filling, regrading and revegetation of waste areas left from
mining operations; (iv) covering of surface waste areas
left from mining operations; (v) creation of parks, re-
creation, and scenic areas in mined areas; (vi) activities
designed to beautify or screen mined areas; (vii) construc-
tion and maintenance of seals or casing on boreholes, wells,
shafts, tunnels or entries that result from deep mining
operations; (viii) filling, backfilling, and flushing areas
of subsidence and; (ix) any other activities designed to
avoid or correct adverse environmental effects of mining
operations.
(1) "mineral rights" means any legally recognized
interest in mineral resources, including but not limited
to leasehold rights, mineral estates, profits, easements,
and any property rights or contract rights which permit a
person holding such rights to engage in a mining operation.
(m) "holder of an interest in mineral rights" means
any person or governmental agency having an interest in
mineral rights. Persons or governmental agencies within
the purview of this definition shall include but not be
limited to fee simple owners of mineral rights, or any
other persons or governmental agencies receiving royalties
or periodic payments in return for permitting mining
operations.
(n) "Advisory Committee" means the Advisory Committee
on Environmental Problems created by this Act.
Part Two
Organization
1.201 - Creation.
There is hereby created a Bureau of Mines which shall
be within the Department of Natural Resources.
2.202 - Director.
(a) The Governor shall appoint, upon the recommenda-
tion of the Secretary of Natural Resources, a competent
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person with the qualifications prescribed herein as Dir-
ector of the Bureau of Mines. The Director shall be the
head of the Bureau and shall personally direct its opera-
tions and activities. The Director shall be a person
with executive ability and exeperience, and shall have
an academic degree and knowledge of the general principles
involved in the administration, improvement, planning,
management and conservation of mineral resources. The
Director shall devote his full time to the work of the
Department and shall receive such salary as may be provided
by law. The Director may be removed by the Governor, upon
recommendation of the Secretary of Natural Resources, for
failure to comply with written directives of the Secretary,
or for willful or repeated disregard of policies enunciat-
ed by the Secretary.
(b) The Director shall be responsible for the
exercise of all the powers and duties conferred upon the
Bureau by this Act.
1.203 - Staff.
The Director shall appoint the staff of the Bureau,
subject to the provisions of the merit system. The staff
of the Bureau shall consist of such employees as may be
necessary to carry out the duties of the Bureau, in such
numbers and at such salaries as provided by law. All
employees shall be under the supervision and control of
the Director and shall perform such duties as he may
prescribe.
1.204 -Advisory Committee on Environmental Problems.
(a) There is hereby created an Advisory Committee on
Environmental Problems of eleven members. Ex officio
members shall be the directors of the following state
agencies or their designated representatives: the Geologi-
cal Survey agency; the Fish and Wildlife agency; the Parks
and Recreation agency; the Water Quality agency, and the
Air Quality agency. The Governor shall appoint for three
year terms, additional members from the following categor-
ies: two members representing organizations engaged in
conservation activities; two members representing the min-
ing industry, and two members who serve as soil conser-
vation district supervisors in counties with mining oper-
167
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tions.
(b) The Advisory Committee shall select its chair-
man and shall meet at least once every six months.
Special meetings may be called by the chairman. A
majority of members shall constitute a quorum. The mem-
bers shall serve without compensation, other than reim-
bursement for travel and actual expenses incurred in
performance of their duties.
(c) The Advisory Committee, when so requested by
the Director, shall advise and assist in the formulation
and review of Bureau rules and regulations and orders and
in the resolution of problems and disputes which may
arise.
Part Three
General Powers and Intergovernmental
Relationships
1.301 - General Powers.
In addition to the powers specifically delegated
to the Bureau by this Act, it shall also have the power to:
(a) supervise, regulate and control mining operations;
(b) exercise the powers conferred and perform the
duties imposed by all laws hereafter enacted relating to
mining operations;
(c) enter into contracts, and sue and be sued in
its own name;
(d) collect, compile, analyze, interpret, coordin-
ate, tabulate, summarize, and distribute technical and
other data and conduct studies, sponsor research and
prepare reports on mineral resource problems of the state;
(e) prepare, publish and disseminate information
and reports in relation to mining operations and provide
technical assistance to those engaged in mining operations;
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(f) plan, design, acquire, construct, reconstruct,
complete, own, improve, extend, develop, operate, main-
tain, and regulate any projects, facilities, properties,
activities, and services, determined by the Bureau to
be necessary, convenient or useful for the purposes of
this Act;
(g) negotiate for and accept loans, grants, services,
or other aids from governmental agencies or private sources
to finance or assist in effectuating any of the purposes
of this Act;
(i) institute actions in its own name to compel
compliance with any of the provisions of this Act or any
of the rules and regulations of the Bureau adopted
pursuant thereto;
(j) acquire real or personal property and any inter-
est therein as it may deem appropriate for carrying out
its functions under this Act;
(1) sell or dispose of any of its products or ser-
vices and make charges in connection with the use of any
of its facilities;
(m) conduct such investigations and inspections as
it may deem appropriate to carry out its functions under
this Act;
(n) undertake or contract for with any private or
governmental organization, laboratory or research group,
studies, surveys and experiments concerning the resources
of the State.
1.302 - Intergovernmental Relationships.
(a) When the Bureau deals with mining operations
located in a common natural region consisting of two or
more states it shall coordinate its regulations, acti-
vities and programs with those of the other state or of
any interstate agency. The Bureau may negotiate with
agencies of the other state or with any interstate agency
and develop and promulgate uniform regulations.
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(b) When the Bureau finds that there would be ad-
vantages in the development of cooperative programs with
the agencies of another state it shall negotiate
the scope of such a program and a proposed funding
arrangement. Such programs shall only take effect if
approved by the legislature.
(c) When the Bureau finds that there would be
advantages in enactment of an interstate compact to
manage and regulate mining operations located in a common
natural region, it shall develop and recommend to the
legislature adoption of such a compact.
Comments to ARTICLE 1.
Article 1 defines the terms used through-
out the statute, creates the Bureau of Mines,
outlines its internal structure, and invests
it with a boilerplate of general powers.
The Bureau is placed within the state's
major natural resource department (e.g.,
Department of Natural Resources, Department
of Environmental Affairs, etc.) and headed
by a single executive director who acts
under the authority of the executive head
of the major department. This structure
is designed to prevent administrative frag-
mentation to meet the admonition of the
First Hoover Commission that "the exercise
of authority is impossible without a clear
line of command from the top to the bottom
and a return line of responsibility and
accountability from the bottom to the top."
Because of the apparent success of the
Land Reclamation Committee (composed of
ex-officio representation of the state's
geological survey, water quality, parks,
fishery, and soil conservation agencies, and
representatives of the mining industry) which
helps administer the Maryland surface
mining laws, consideration was given to
creating a similar committee within the
Bureau of Mines. This was rejected because
it is felt that the workload will be too
170
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great for such a part-time body. However,
Section 1.204 creates an advisory committee
which will expose the Bureau to a diversity
of viewpoint and expertise.
Much of the present emphasis on environ-
mental problems points to the difficulties
occasioned in state regulation of broad
regional problems. Interstate compacts
are often suggested as a solution. This
statute, however, proceeds on the assumption
that the requisite first steps are an
active response at the state level. Then
to the extent the states find themselves
hampered, they will be in a position to
develop appropriate cooperative programs,
new interstate institutions. Section 1.302
of the statute directs the Bureau to coor-
dinate its activities with the agencies
of other states and with existing inter-
state agencies (e.g., ORSANCO and the
Susquehanna River Basin Commission).
Section 1.302 also charges the Bureau to
propose creation of new interstate agencies
when it finds they would be dangerous.
ARTICLE 2
REGULATION OF THE ENVIRONMENTAL
EFFECTS OF MINING OPERATIONS
Part One
Regulatory Power
2.101 - Scope of Regulatory Power.
The Bureau shall adopt and from time to time review,
revise and amend regulations necessary or useful to avoid
or correct adverse environmental effects of mining opera-
tions .
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Part Two
Environmental Quality Standards
2.201 - Air Quality.
Following consultation with and obtaining comment from
the state's air quality agency, the Bureau, after notice
and hearing, by regulation shall establish standards
limiting the levels of airborne dust, smoke or emissions
from mined areas, or mine fires, or from blasting, haul-
ing, dumping, or ventilating procedures conducted pursuant
to mining operations. Such standards shall be at least
as stringent as the state's air quality standards.
2.202 - Water Quality.
Following consultation with and obtaining comment
from the state's water quality agency, the Bureau, after
notice and hearing, by regulation shall establish stand-
ards limiting surface and ground water discharges which
are contaminated with acid, debris, silt, dissolved or
suspended solids or other wastes from mining operations.
Such standards shall be at least as stringent as the
state's water quality standards and may be in the form
of effluent standards or receiving water standards.
2.203 - Noise.
Following consultation with and receiving comment
from state agencies which have special expertise with
respect to noise and seismic disturbance, the Bureau,
after notice and hearing, by regulation shall establish
standards limiting noise and seismic disturbances from
drilling, blasting, hauling and other incidents to mining
operations.
2.204 - Subisdence and Land Slides.
Following consultation with and receiving comments
from state agencies which have special expertise with
reference to geological problems, soil conservation and
forestry,the Bureau, after notice and hearing, by regula-
tion shall establish standards as to mined areas so as to
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maintain overlying ground stability and to ensure against
slope failures of highwalls and spoil banks.
2.205 - Protection and Restoration of Surface.
Following consultation with and receiving comment
from state agencies which have special expertise with
respect to geological problems, soil conservation and
forestry, the Bureau, after notice and hearing, by
regulation shall establish standards specifying regrad-
ing and revegetation required to be effected during and
following mining operations. Such regulations may relate,
but are not limited, to the following: burying of toxic
material; re-establishment of original contour; fertili-
zation; replantings; sealing of surface fissures and
underground mine openings, filling in areas of subsidence
and screening mining operations for aesthetic purposes.
Part Three
Prohibition of Mining Operations
2.301 - Prohibition.
The Bureau, after notice and hearing, may by regula-
tion prohibit mining operations in certain geographical
regions; or under certain geological or topographical
conditions, or using certain mining techniques, upon a
finding that under the state of technoology existing at
that time such mining operations would result in (i)
violation of this Act or the regulations promulgated
thereunder; (ii) violation of any other applicable law or
regulation; (iii) irreparable harm to the environment; or
(iv) significant hazard to public health and safety.
2.302 - Appeal.
Any person having an interest in the mineral rights
with respect to which the Bureau has prohibited mining
operations may petition the district court for the county
in which the mineral rights are located to determine
whether the prohibition so restricts the use of his prop-
erty as to constitute an unconstitutional taking without
compensation. If the court finds the prohibition to consti-
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tute an unconstitutional taking it shall enter a ruling
that the prohibition does not apply to the interest of the
petitioner; provided, however, that such finding shall
not effect any interest other than that of the petitioner.
Part Four
Responsibility for Violation of Regulations
2.401 - Mine Operators.
Mine operators shall be responsible for any violation
of this Act or the regulations promulgated thereunder,
which result from mining operations controlled or managed
by them. Responsibility shall continue to attach, not-
withstanding that the mining operation is inactive when a
violation occurs, unless a Certificate of Reclamation for
the mining operation has been obtained pursuant to Section
3.214 of this Act.
2.402 - Holders of Interests in Mineral Rights.
Holders of interests in mineral rights shall be
responsible for any violations of this Act, or the regu-
lations promulgated thereunder, which result from mining
operations in the exercise of their mineral rights,
regardless of whether such holders have contracted out the
right to engage in mining operations to independent mine
operators. Responsibility shall continue to attach not-
withstanding that the mining operation is inactive when
the violation occurs, unless a Certificate of Reclamation
for the mining operation has been obtained pursuant to
Section 3.214 of this Act.
Comments to ARTICLE 2.
Generally speaking there are two sorts of
environmental quality standards. "Background
standards" limit the maximum permissible level
of bad environmemtal effects in the general
surroundings. They are illustrated by ambient
air quality standards and receiving water
quality standards. "Site standards" limit the
maximum permissible level of bad environmental
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effects that may be discharged at a given
place or from a given activity. They are
illustrated by effluent standards limiting
what can be spewed from a pipe or stack.
In a loose sense, Article 2 gives to the
Bureau rule-making authority to establish
"background standards" to be applied in mined
areas; Article 3 gives to the Bureau licensing
power to establish "site standards" for parti-
cular mining operations. There are a variety
of advantages in complementing the Bureau's
specific licensing power with general rule-
making power. The licensing powers provided by
Article 3 are prospective in application —
applying only to mining operations on-going
after the statute's effective date. As noted
throughout the report past mining operations
have created pervasive environmental problems
and the accountability of persons other than
the actual mine operator is often in doubt.
Article 2 responds to this problem by
providing for the establishment of a variety
of standards (air quality, water quality,
noise, subsidence and land slides, and restora-
tion of surface) and by specifying in Sections
2.401 and 2.402 those persons accountable for
violations. Section 2.401 specifies the con-
tinuing responsibility of the original mine
operator (regardless of whether he is still
operating the mine) unless he has procured a
release from the Bureau pursuant to Section
3.214 of the Act. Section 2.402 clarifies the
legal responsibility of those persons who have
a participatory interest in the mining opera-
tion for violations of the Act's environmental
standards. The impact of that responsibility
is specified in Article 6 of the Act.
Consideration was given to extending respon-
sibility to owners of severed surface rights.
This was rejected because of the constitutional
problems involved, and because it might on
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occasion trap and surprise the unwary seller of
mineral rights. Moreover, the Bureau is guar-
anteed surface access to mine sites elsewhere
in the statute, and the combined responsibility
of the mine operator and the holder of mineral
rights ordinarily provide an adequate surety
base to guarantee reclamation.
However, even with these provisions more
clearly defining legal responsibility for en-
vironmental side effects from coal mines, with
reference to many inactive mines there often
will be no person who is financially accountable,
It is then incumbent on the Bureau itself to
undertake the reclamation effort under Article
4 of the statute.
The general regulations which will be
promulgated under Article 2 also serve as a
prophylaxis against legal challenges to the
Bureau's decisions on the ground that they are
arbitrary and capricious. For example, under
Section 2.301 the Bureau is given rule-making
power to prohibit mine operations which under
the present state of technology are not subject
to effective reclamation or which present a
public health and safety hazard. Under this
power the Bureau might prohibit surface mines
on a steep grade because of revegetation prob-
lems, or prohibit underground mining in popu-
lated areas because of safety problems. It
is true the Bureau could accomplish the same
goal under Article 3 by denying permits on an
ad hoc basis. But it seems much preferable to
proceed with regulations promulgated pursuant
to statutory standards, thereby minimizing the
effectiveness of the argument that the law is
being unevenly applied.
The prohibition of particular types of
mining operations will raise constitutional
questions as to whether such action constitutes
a taking of private property for which the state
must pay compensation. As developed in the
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Report, the courts have failed to develop a
clear litmus test as to what constitutes such
a taking. Section 2.302 responds to this
uncertainty by permitting an owner of mineral
rights, who feels that his rights have been
expropriated, to petition for judicial redress.
It has two advantages. First, it provides a
clear procedure for vindicating a constitutional
right; second, it reduces the pressure on
courts to strike down the whole of a regulatory
prohibition as unconstitutional, by providing
an escape valve.
ARTICLE 3
APPROVAL OF MINING OPERATIONS
Part One
Prior Approval
3.101 - Prior Approval Required.
No person or governmental agency shall engage in any
mining operation without prior approval of the Bureau under
the provisions of this Article.
Part Two
Permits for Mining Operations
3.201 - Delineation of Mining Operations.
The Bureau by regulation shall prescribe standards
by which mining operations can be delineated into separate
activities or areas for purposes of evaluation or issuance
of permits.
3.202 - Requirement of Permit.
No person or governmental agency shall commence
or continue a mining operation after the effective date
of this Act without a permit from the Bureau.
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3.203 - Application for Permit.
An application for a permit for mining operations
shall be in writing in such form and containing such infor-
mation as the Bureau shall prescribe by regulation and
shall include but not be limited to background information,
an operating plan, and a reclamation plan. It shall be
accompanied by such standard application fee as the Bureau
determines is sufficient to defray the costs of the
procedures established to consider applications, and which
shall not be returnable.
3.204 - Background Information.
(a) The identifying information shall consist of:
(1) the names and addresses of holders of interests in
land or mineral rights in or contiguous to the area to be
mined; (ii) holders of interests in mineral rights to be
mined; (iii) any purchasers of such interests in land or
mineral rights under real estate contract; (iv) the mining
operator. If any of the above be business activities
other than sole proprietor, the names and addresses of
their principal officers and resident agents shall be
included.
(b) The following information about the mined area
shall also be provided: the surface topography, make-
up of the geological strata, concentration of soluble
toxic metal ions and radioactive materials, surface and
ground water systems, and such other information as the
Bureau may require.
3.205 - Operating Plan.
The Operating Plan shall include the following:
(a) Types of mining operations that exist or are
proposed;
(b) Anticipated or actual starting and termination
dates of the mining operation;
(c) Location and extent of area to be mined, includ-
ing annotated maps or aerial photographs depicting: boun-
daries of the interest in land and mineral rights to be
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affected; location of these interests within the govern-
mental units and their relationship to newly developed
areas; land-use prior to mining operation; and, location
and names of existing waterways, drainages, roads, trails,
railroad, buildings, utility rights of way and historic
or aesthetic features within and contiguous to the area
to be mined; and
(d) A schedule indicating the projected phases of
the mining operation.
3.206 - Reclamation Plan.
The Reclamation Plan shall include the following:
(a) A description of the planned use of the area to
be mined after the mining operation is completed and the
nature and extent of reclamation necessary to facilitate
this use;
(b) An estimate of the time needed to complete all
planned reclamation;
(c) A schedule indicating the projected phases of
the reclamation process correlated with the schedule of
mining operations provided for in Section 3.205(d).
(d) A description of the steps to be taken to ensure
that the mining operation complies with the environmental
quality standard promulgated under Article 2 of this Act
and with all other applicable laws and regulations deal-
ing with environmental quality, health and safety. Where
applicable, the Reclamation Plan shall also contain the
following: (i) Provisions to prevent degradation of
ground and surface water streams by directing surface
water streams from unreclaimed mine areas or active mine
areas, treating drainage from mining wastes or spoil accum-
ulations, and sealing or casing of tunnels, boreholes, wells,
and shafts that cross aquifers; (ii) Provisions to protect
against flooding resulting from: silting or damming up
of stream channels, inadequate drainage systems for strip
pits, contour benches and settling ponds and uncontrolled
erosion; (iii) Provisions to prevent debris slides and
slope failures on highwalls and spoil banks; (iv) Provi-
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sions to control dust, smoke and other emissions; (v)
Provisions to minimize noise and seismic disturbances
from drilling, blasting and hauling; (vi) Provisions to
prevent fires in mines, outcrops and waste banks, and to
prevent the spread of such fires; (vii) Provisions to
ensure that underground mining is conducted so as to
protect overlying ground stability; (viii) Provisions
to regrade and revegetate mineral areas so as to minimize
erosion and contamination of surface or ground water;
(ix) Provisions to screen the view of mining operations
from surrounding areas; (x) Provisions to ensure that
no adverse environmental side effects or waste accumula-
tion will be located outside of the designated permit
area.
3.207 -- Charge for Use of Bureau's Reclamation Facility
or Project.
Where the Reclamation Plan involves use of a reclama-
tion facility or project undertaken by, or to be under-
taken by the Bureau, the Bureau shall calculate a charge
to be imposed on the applicant taking into account the
full cost of each facility or project and the pro-rata
share of such cost which may be equitably attached to the
proposed mining operation to be conducted by the applicant.
In determining such pro-rata share the Bureau shall take into
account costs which will accrue both during and after the
active mining operation. The Bureau may impose either a
single charge,or periodic charges for the anticipated
duration of the mining operation, and such charges shall
be subject to modification by the Bureau, from time to
time, prior to issuance of a Certificate of Reclamation
pursuant to Section 3.214 of this Act.
3.208 - Consideration of Application.
(a) Upon receipt of a complete application and the
application fee, the Bureau shall give notice and hold a
seasonable hearing.
(b) The Bureau shall issue a permit if: (i) it
finds on the basis of the application, including the Opera-
ting and Reclamation Plans, and the evidence adduced at the
hearing, that the mining operation will be in compliance
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with this Act, the regulations promulgated under this
Act and all other applicable laws and regulations dealing
with environmental quality, health and safety; (ii) the
applicant has paid the application fee specified in Section
3.203 of this Act; and (iii) the applicant has tendered
the charge, if any, imposed under Section 3.207 of this
Act and determined by the Bureau to be payable at that time.
(c) The Bureau shall deny a permit if it finds that
(i) any of the conditions in paragraph (b) of this Section
have not been fulfilled; or (ii) the applicant has forfeit-
ed any bond or security deposit posted with respect to
mining operations in any state of the United States of
America or, if the applicant is a corporation, partner-
ship or association, that any officer, director or princi-
pal owner of such corporation, partnership or association,
has previously forfeited any bond or security deposit
posted with respect to a mining operation in any state of
the United States of America.
(d) The Bureau may require more information from an
applicant if it finds it to be necessary to determine
whether the permit should be issued.
(e) If the Bureau denies a permit it shall notify
the applicant of the reasons, listing whatever changes
to the Operating and Reclamation plans are necessary.
3.209 - Payment of Charge to General Reclamation Fund.
Charges paid to the Bureau pursuant to Section 3.207
of this Act shall be deposited in the General Reclamation
Fund.
3.210 - Rights Created by Permit.
(a) Permits issued under this Article shall be in
writing and shall state the date, conditions and qualifica-
tions of their issuance, and duration and geographical
area of their validity.
(b) Permits issued under this Act shall not create
any vested rights in the holders and may be limited or
rendered nugatory by exercise of the Bureau's powers under
Section 2.301 of this Act, by other changes in laws or
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regulations, or by suspension, revocation or modification
according to the procedures hereinafter provided.
(c) The holder of a permit may seek modification of
the permit's terms by following the same procedures provid-
ed for the original issuance of a permit. The Bureau may,
on its own initiative, after notice and hearing modify the
terms of a permit.
3.211 - Suspension and Revocation of Permits.
(a) The Bureau shall suspend a permit and issue an
order directing stoppage of the mining operation whenever
it has reasonable grounds to believe that the mining
operation is no longer being conducted in compliance with
the requirements of Section 3.208(b) and (c) or that a
mining operation has violated the terms of the permit,
the provisions of this Act, the regulations promulgated
thereunder or any other applicable law or regulation.
Suspension may be for a definite or an indefinite period
of time. Reinstatement shall be conditioned on a halt to
the violation, correction of any adverse environmental side
effects which have resulted from it, and such other condi-
tions as the Bureau finds appropriate. If there are
reasonable grounds to believe that any of these conditions
are unlikely to be fulfilled,the Bureau shall revoke the
permit and may revoke any other permits held by the
mine operator.
(b) Before suspending a permit, the Bureau shall
hold a seasonable hearing. A copy of the charges, toget-
her with a notice of the time and place of hearing, shall
be personally served or mailed by registered mail to the
last known address of the mine operator. At any hearing,
the accused mine operator shall have the right to appear
in person and by counsel to cross-examine witnesses and
to produce evidence and witnesses in his own defense.
(c) Whenever the Bureau has reasonable grounds to
believe that a mining operation is in continuous violation
of the terms of the permit, the provisions of this Act,
the regulations issued thereunder or any other applicable
law or regulation,the Bureau may suspend a permit and
issue an order directing stoppage of work without a
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hearing. Whenever a permit is suspended without a hearing,
a hearing shall be scheduled under paragraph (b) of this
Section at the earliest reasonable time.
3.212 - Inspection and Monitoring.
The Bureau may at reasonable time enter upon and
inspect sites of mining operations and may install monitor-
ing devices on such sites. The purpose of such inspection
and monitoring activity shall be to: (i) evaluate the amount
of performance bond or deposit; (ii) determine whether the
mining operation is complying with the terms of the permit,
the provision of this Act and regulations promulgated there-
under, and all other applicable laws and regulations; and
(iii) determine the effectiveness of the environmental
quality standards that are being imposed on the mining
operation.
3.213 - Performance Bond or Deposit.
(a) Following issuance of a permit but before
commencing mining operations, a mine operator shall deposit
with the Bureau a performance bond, cash, or negotiable
bonds of the United States government, in an amount suffic-
ient as determined by the Bureau, to defray the costs of
reclamation required by the terms of the permit, the pro-
visions of this Act and regulations promulgated thereunder,
and other applicable laws and regulations, and to ensure
payment of any unpaid charges imposed by the Bureau pur-
suant to Section 3.207 of this Act.
(b) Performance bonds shall be in a form to be
prescribed and furnished by the Bureau, and payable to the
state.
(c) Deposits of cash or securities shall be dep-
osited by the Bureau with the State Treasurer, who shall
hold the bond in the name of the state, in trust, for the
purposes for which the deposit is made. The operator mak-
ing the deposit, from time to time may demand and receive
from the State Treasurer, the whole or any portion of any
securities so deposited, upon depositing with the State
Treasurer, in lieu thereof, other negotiable securities of
the classes herein specified having a market value at least
equal to the sum of the bond.
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(d) If the Bureau finds under the procedures set
forth in Section 3.211 of this Act that a mine operator
has failed to comply with the reclamation requirements of
the permit, the provisions of this Act, or the regulations
promulgated thereunder or any other applicable law or regu-
lation, the Bureau shall declare the bond forfeited and
shall proceed to sue out and collect the amount of liability
thereon, or if the mining operator has deposited cash or
securities in lieu of bond the Bureau shall declare that
portion of the deposit forfeited, and it shall direct the
State Treasurer to pay the funds into the General Reclama-
tion Fund.
(e) If the performance bond or deposit proves insuf-
ficient to defray the full cost occasioned by the mine
operator's failure to comply with reclamation requirements
of the permit, the provisions of this Act or the regulations
promulgated thereunder, or any other applicable law or
regulation, or any unpaid charge imposed by the Bureau
pursuant to Section 3.207 of this Act, the mine operator
shall be civilly liable to the Bureau for the additional
amount necessary to defray such full costs. Amounts so
recovered by the Bureau shall be paid into the General
Reclamation Fund.
(f) Liability under a bond or deposit shall continue
until the mine operator receives a Certificate of Reclama-
tion under the provisions of Section 3.214 of this Act.
3.214 - Certificate of Reclamation.
Upon completion of a mining operation including
the required reclamation work, a mining operator may
make application in such form as the Bureau may require,
for a Certificate of Reclamation. If the Bureau finds
that the mine operator has complied with the reclamation
requirements of the permit, the provisions of this Act,
the regulations promulgated thereunder, and any other
applicable laws or regulations, it shall issue the mine
operator a written Certificate of Reclamation. Upon
issuance of such a Certificate, the mine operator shall
be excused from responsibility for any subsequent environ-
mental damage arising from previous mining operations
at the permit site.
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3.215 - Annual Reports.
Holders of permits shall submit annual reports
to the Bureau at such time, in such form and with such
information as the Bureau may require.
3.216 - Notice to Bureau.
Mine operators shall give the Bureau immediate notice,
in such manner as the Bureau may provide by regulation, in
any of the following cases:
(a) When any changes occur in the officers, directors
or principal owners if the mine operator is a corporation,
partnership or association;
( b) When the mining operation is discontinued per-
manently or temporarily;
(c) When there is a violation of any of the terms
of the permit, or of this Act or the regulations promulgated
thereunder, or of any other applicable laws or regulations.
3.217 - Mine Maps.
Every mine operator shall na ke or cause to be made a
true and accurate map or plan of the workings or excava-
tions of such mine which shall be in accordance with stan-
dards established by the Bureau. Such maps or plans shall
show in detail, and in markings of a distinctive color,
all contemplated workings which are intended to be under-
taken or developed within the succeeding year. Such maps
or plans shall accompany the annual report and shall also
be deposited with the receiver of deeds of any county in
which such mining is or will be conducted, and in addition
thereto, with such political subdivisions where mining is
taking place or is contemplated, as shall request such
maps. Such maps or plans shall be considered public
records and shall be open to the inspection of the public
and copies or tracings may be made therefrom. The Bureau
may require the making and filing of maps more often than
annually.
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Part Three
Severance Tax
3.301 - Underground Mining Operations.
A severance tax of $ per ton is hereby levied
upon the taking of minerals by underground mining opera-
tions .
3.202 - Surface Mining Operations.
A severance tax of $ per ton is hereby levied
upon the taking of minerals by surface mining operations .
3.303 - Payment.
The tax shall be paid by the mine operator at such
times and in such manner as the Bureau may prescribe by
regulation. Failure to pay the tax when due shall be
deemed a violation giving rise to suspension or revocation
of permit under Section 3.211 of this Act. An unpaid
tax, upon being recorded in the title records for the county
where the mining operation takes place, shall become a lien
against all mineral rights and property interests which
are used in conjunction with the mining operation and held
by persons responsible for violations of the Act and shall
be referred to the Attorney General for collection.
3.304 - Deposit in General Reclamation Fund.
The Bureau shall deposit all severance tax proceeds
received by it into the General Reclamation Fund created
by Section 5.301.
Comments to ARTICLE 3.
The advantages of complementing the general
quality standards discussed in the commentary
to Article 2 with a requirement that specific
job approval be obtained, are manifest. A permit
system helps the Bureau prevent environmental
degradations rather than merely responding to
degradations which already exist; a permit
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system shifts the burden of establishing that
a mining operation will not have adverse
environmental effects to the applicants and
provides a vehicle through which the Bureau
can fix responsibility for degradations
which do occur. Section 3.101 lays the
ground work by making it unlawful to engage
in mining operations without a permit.
Sections 3.201 - 3.206 specify the details
of the permit system. Generally they require
that the applicant produce background data
about the site he intends to mine and plans
for proposed mining operations and reclamation
activities.
Section 3.207 provides a mechanism
through which private mining operations may be
hooked into public reclamation facilities.
For example, if the applicant wishes to engage
in underground mining activities in a water-
shed where the Bureau has, or plans to con-
struct a permanent mine acid treatment facil-
ity, his reclamation plan might provide for
piping the mine acid drainage resulting from
his operation to such plant for treatment.
Section 3.207 provides under this circumstance
that the Bureau shall calculate a pro-rata
charge to be levied against applicants for
such use. Either a lump sum or installment
payments are permitted, but all payments are
to be received prior to the release of the
operator from future obligation pursuant to the
procedures in Section 3.214. The Bureau may
also modify the charge prior to issuance of
the release. Section 3.209 provides for pay-
ment of the charge into the General Reclama-
tion Fund created by Section 5.301 of the Act.
Section 3.208 sets forth the procedures
and criteria for consideration of permit appli-
cations. The procedures specified require
notice and hearing. The criteria require a
finding of compatability with the environ-
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mental quality standards established under
Article 2 of this Act, and with other appli-
cable laws and regulations (e.g., sediment
control laws, general water quality standards,
etc.), and that the applicant has not previously
forfeited a bond or security deposit because
of failure to comply with mining laws or regula-
tions. If the Bureau denies a permit it is
required to specify reasons.
Section 3.210 makes clear that the rights
created by a permit are subject to review and
modification by the Bureau. This power might
be used to require alterations in the nature
of the mining operations or reclamation opera-
tions when environmental quality standards are
made more stringent.
Section 3.211 provides for quasi-judicial
procedures through which permit rights may be
suspended or revoked because of violations
of the permit's terms or of other mining laws
or regulations. The mine operator is guaranteed
the right to produce evidence and to cross
examine witnesses. Upon a finding that a
violation occurred the Bureau may revoke the
permit or suspend it for a fixed period of
time.
Section 3.213 provides that each mine
operator shall post a performance bond (or
an alternative security deposit) with the
Bureau before commencing mining operations.
The bond is to be set by the Bureau in an
amount sufficient to defray the costs of
completing reclamation should the operator
default. Upon a finding by the Bureau that
the operator has completed the reclamation work
in a satisfactory fashion, Section 3.214
provides a procedure through which the operator
may be formally released from further obliga-
tion, and the bond or security deposit returned.
Section 3.217 permits the Bureau to enter
the mine premises and correct a permit violation
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and to charge when the mine operator fails or
refuses to do wo.
Sections 3.301 through 3.304 provide the
outline of a severance tax on the taking of
minerals. The amount of the tax per ton is
left to legislative determination and it is
likely that the legislature may wish to
develop variable taxes depending on the
type of mineral being taken and the method
of taking. It is hoped that the legislature
will select rates, the proceeds from which
will cumulatively, when added to forfeited
bonds and other damages collected for permit
violations, create a fund sufficient to pay
the annual capital and operating cost of con-
trolling the mine side effects resulting from
mine operations on-going after tl" e Act's
effective date. This would impose on each
successive crop of coal miners the cost of the
Act's administration and implementation, and
the cost of failure of the licensing provi-
sions of the Act to prevent all adverse environ-
mental side effects. This is the function
of the General Reclamation Fund, into which
revenues from the tax are poured.
ARTICLE 4
PROJECTS AND FACILITIES
Part One
General Powers
4.101 - Programs.
The Bureau shall from time to time adopt programs
necessary and useful to implement the provisions of this
Act and the regulations promulgated thereunder and to
avoid or correct adverse environmental effects of mining
operations.
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4.102 - Assistance and Training Programs.
The Bureau shall provide administrative and technical
assistance, and training programs for persons and govern-
mental agencies engaging in mining operations and in enforce-
ment of environmental regulations. It shall be the purpose
of such programs to gather, evaluate and distribute informa-
tion concerning the adverse environmental effects of mining
operations.
4.103 - Research.
The Bureau shall formulate and fund research programs
when it determines that there are inadequate techniques to
adequately deal with adverse environmental effects of
mining operations.
Part Two
Inventory
4.201 - Inventory of Mining Operations.
The Bureau shall with the assistance of other inter-
ested Federal state and local agencies, develop, and from
time to time, review, revise and amend an inventory of
mining operations in the state. The inventory shall
generally comprise a report of statement with maps, dia-
grams and text, and shall include, but need not be
limited to:
(a) a geological survey element showing the location
and extent of the mineral resources of the state;
(b) a hydrological survey element showing the loca-
tion of surface waters, underground waters, and aquifers,
and their relation to the mineral resources of the state;
(c) a land use element showing the location, extent
and intensity of uses of land in areas having significant
deposits of minerals;
(d) a mine element showing the location of and the
adverse environmental effects from mining operations and
which classifies such mine operations as active or inactive
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on the effective date of this Act. The adverse environ-
mental effects considered under this section shall include,
but need not be limited to: (i) mine, outcrop and refuse
bank fires; (ii) surface waste areas left ungraded or
without sufficient revegetation; (iii) surface waste areas
with concentrations of soluble toxic metal ions or chemi-
cal wastes, or of high radioactivity; (iv) bore holes,
wells or shafts that cross aquifers; (v) surface subsi-
dence; and (vi) other contributions to air and water
pollution.
(e) a periodic status report on mining operations
conducted pursuant to permits issued under this Act show-
ing the following: (i) location and extent of the cirea
to be effected; (ii) the present status of the permit
under which they were undertaken;(iii) extent of operating
and reclamation progress; (iv) effectiveness of steps
taken to control environmental effects and (v) such other
information as the Bureau deems appropriate.
Part Three
Acquisition, Construction, Operation and Management
of Reclamation Facilities and Projects by the Bureau
4.301 - General Powers.
(a) The Bureau, alone or in cooperation with one or
more persons or governmental agencies, may acquire, con-
struct, operate, maintain and administer such reclamation
facilities and projects as it deems appropriate to deal
with the environmental effects of mining operations.
(b) In construction, operation, maintenance and
administration of reclamation facilities and projects the
Bureau may act through public or private contractors,
lessees or concessionaires.
4.302 - Acquisition.
The Bureau may acquire any interests in land or
mineral rights necessary or useful to fulfillment of the
purposes of this Act by purchase, gift, grant, devise,
bequest, lease, exercise of the power of eminent domain,
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exchange or otherwise.
4.303 - Declaration of Public Purpose.
(a) The legislature hereby declares that the acqui-
sition of any interest in land or mineral rights in order
to construct, operate or manage reclmation facilities and
projects constitutes acquisition for a public use, not-
withstanding that the Bureau plans to hold the interest
in land or mineral rights so acquired as an open space,
or to resell the land, following completion of the
reclamation facility or projects. Any moneys received
from the sale of land acquired hereunder shall be
deposited in the General Reclamation Fund created by
Section 5.301 of this Act.
(b) The legislature hereby declares that construc-
tion, operation or management of reclamation facilities
and projects on interests in land or mineral rights held
by persons, constitutes an action for a public purpose.
4.304 - Exercise of the Power of Eminent Domain.
(a) When the Bureau desires to acquire an interest
in land or mineral rights, and cannot reach an agreement
with the persons who hold such interest or right as to
what constitutes just compensation, it shall file a
condemnation suit and take such interest or right,
following a tender of just compensation as awarded by a
jury to such persons; provided, however, when the Bureau
determines that time is of the essence, the Bureau may
take such interest or rights immediately upon payment by
the Bureau either to such person or into court of such
amount as the Bureau shall estimate to be the fair value
of such interest or rights, and provided further that the
Bureau, shall also pay to such person any further amount
as the Bureau shall estimate to be the fair value of such
interest or rights, and provided further that the Bureau,
shall also pay to such person any further amount that may
subsequently be awarded by a jury, with interest from the
date of the taking.
(b) When the Bureau desires to acquire an interest
in land or mineral rights, and cannot determine what per-
son or persons hold such interest or right, the Bureau
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shall file a condemnation suit, and give notice, and may
take such interest or rights immediately upon payment into
court of such amount as the Bureau shall estimate to be
the fair value of such interest or right. If a person or
persons establishes ownership of such interest or right
within six years from the time of its taking, the court
shall transfer the payment to them and the Bureau shall
pay any further amount that may be awarded by a jury
subsequent to the time of taking. If no person estab-
lishes ownership of the interest or right within six years
from the time of such taking, the payment shall revert
to the Bureau and be deposited in the General Reclamation
Fund.
Comments to ARTICLE 4.
Article 4 deals with the Bureau's role
as an action agency — development of programs
and research, preparation of an inventory of
inactive and active mining operations, and
acquisition, construction, operation and
management of reclamation and abatement projects.
Section 4.101 is an omnibus charge to the
Bureau to develop programs. Section 4.102
directs the Bureau to provide technical assist-
ance and training programs. In so doing the
Bureau may take advantage of available non-
financial assistance — for example, from
the Secretary of Interior, under Section
209(b) of the "Mined Areas Protection Act
of 1971" (H.R. 4967 and H.R. 5689) if the
bill is enacted into law. Section 4.103
provides for research programs.
Section 4.201 provides for preparation
and maintenance of a continuing inventory of
mining operations within the state. Of
particular importance is the portion of the
inventory which shows the location and ad-
verse environmental effects of mining opera-
tions which are inactive on the effective
date of the Act. This information will be
used to determine the source of funding for
the Bureau's reclamation projects and facil-
ities. Under Article 5 of this Act the cost
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of projects and facilities remedying the
adverse environmental effects resulting from
mines which are inactive when the Act becomes
effective are to be paid out of the Abandoned
Mine Reclamation Fund (created by the sale
of state bonds), while the cost of projects
and facilities remedying the adverse environ-
mental effects from mines licensed under this
Act are to be paid out of the General Reclama-
tion Fund (composed of damages and penalties
recovered by the Bureau, the proceeds of
forfeited performance bonds and security
deposits, proceeds from the severance tax,
monies appropriated by the legislature, and
other miscellaneous sources). Hence a thresh-
hold determination of the location and side
effects resulting from inactive mines is
important.
Sections 4.301 through 4.304 give to
the Bureau the powers necessary to engage
in public works projects designed to abate
adverse environmental effects from mining
operations. Such projects might include
construction of mine drainage treatment
facilities, regrading and revegetation of
surface mines and construction of seals on
mine openings.
A caveat should be appended to the eminent
domain powers which these sections give to
the Bureau. As noted in Chapter 6 of the
study, the states have various constitutional
provisions limiting exercises of condemnation
powers. While in all four states it appears
permissible to authorize the taking of private
property for reclamation purposes, in Maryland
(and perhaps in West Virginia) it is consti-
tutionally impermissible to condemn land for
reclamation purposes where it is intended to
transfer the land back into the private sector,
following reclamation. Likewise under the
particular phraseology of Article 3 Section
40 of the Maryland Constitution which requires
a jury determination and payment of just
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compensation before taking of property, the
"quick-take" procedures of Section 4.305
are constitutionally inform. Hence certainly
in Maryland, and perhaps in West Virginia, a
state constitutional amendment would appear
prerequisite to vesting the Bureau with the
desired powers.
ARTICLE 5
BUDGETS AND FINANCING
Part One
Annual Budget
5.101 - Capital Budget.
The Bureau shall annually adopt a capital budget
including all capital reclamation facilities and projects
it proposes to undertake or continue, or towards payment
of the cost of which it proposes to contribute, during the
budget period, containing a statement of the estimated
cost of each facility or project and the method of financ-
ing thereof. In financing capital reclamation facilities
and projects the Bureau shall apply funds, according to
the following order of priority: (i) any charges imposed
on a mine operator for use of the facility or project
under Section 3.207 of this Act; (ii) grants or other
moneys which may be available from the Federal government;
interstate compact commissions, or other governmental
agencies, other than the Bureau; (iii) such funds as may
be available from the Abandoned Mine Reclamation Fund
created by Section 5.205 of this Act; (iv) such funds as
may be available from the General Reclamation Fund created
by Section 5.301 of this Act.
5.102 - Current Expense Budget.
The Bureau shall annually adopt a current expense
budget for each fiscal year. Such budget shall include
the Bureau's estimated expenses for administration, opera-
tion, maintenance and repairs, including a separate state-
ment thereof for each program facility or project together
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with its cost allocations. The Bureau shall use the
General Reclamation Fund created by this Act to finance
such budget.
Part Two
Abandoned Mine Reclamation Fund
5.201 - Loan.
The Bureau is hereby authorized and directed to issue
a state loan to be known as the Loan for Reclamation of
Abandoned Mines in the aggregate sum of million
dollars to be used to finance the capital cost of reclama-
tion projects and facilities designed to correct adverse
environmental effects from mining operations which were
inactive as of the effective date of this Act.
5.202 - Bonds.
(a) As evidence of the indebtedness authorized in
Section 5.201 of this Act, bonds of the state shall be
issued in accordance with Sections 5.202-5.204 of this
Act, at any time or from time to time, to provide moneys
necessary to carry out the stated purposes.
(b) Except as specified in this Act, the form, terms
and conditions of issue, redemption and maturity, and time
of payment of interest shall be as the issuing officials
shall direct; provided, that no bonds of any series shall
mature later than thirty years from the date of issuance.
The issuing officials are hereby authorized to carry out
the provisions of this Act relating to the issuance of
bonds.
(c) All bonds issued under the authority of this
Act shall bear the facsimile signatures of the issuing
officials and a facsimile of the Great Seal of the state
and shall be countersigned by two duly authorized officers
of a duly authorized loan and transfer agent of the state.
(d) All bonds issued under the authority of this
Act shall recite that they are issued for the purpose set
forth in Section 5.201 of this Act and that they are
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issued in pursuance of this Act. In any action or
proceeding involving the validity or enforceability of
such bonds, such recital shall be conclusive as to their
purpose and authorization.
(e) Anything in this Act to the contrary notwith-
standing, the aggregate principal amount of notes and bonds,
exclusive of funding bonds and refunding bonds, which may
be issued pursuant to this Act shall not exceed
million dollars.
(f) All notes and bonds issued in accordance with
this Act shall be direct obligations of the state and the
faith and credit of the state are hereby pledged for the
payment of the interest thereon as the same shall become
due and the payment of the principal thereof at maturity.
All notes and bonds issued under this Act shall be exempt
from taxation for state and local purposes. The principal
of and interest on such notes and bonds shall be payable in
lawful money of the United States of America.
5.203 - Sale of Bonds.
(a) Whenever bonds are issued, they shall be offered
for sale at not less than ninety-eight per cent of the
principal amount thereof and accrued interest, and shall
be sold by the issuing officials to the highest and best
bidder or bidders after due public advertisement on such
terms and conditions and upon such open competitive bidding
as the issuing officials shall direct. The manner and
times of advertising shall be prescribed by the issuing
officials.
(b) Any portion of any bond issue so offered and not
sold or subscribed for may be disposed of by private sale
by the issuing officials in such manner and at such
prices, not less than ninety-eight per cent of the
principal amount thereof and accrued interest, as the
Governor shall direct. No commission shall be allowed
or paid for the sale of any bonds issued under the authori-
ty of this Act.
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5.204 - Sinking Fund.
(a) All bonds issued under this Act shall be
redeemed at maturity and all interest due from time to
time on such bonds shall be paid from the Abandoned
Mine Sinking Fund. The General Assembly, beginning
with the fiscal year commencing , 19 , shall
appropriate annually the moneys necessary to pay the afore-
said interest on said bonds and the principal of said
bonds at maturity. All moneys so appropriated shall be
paid into the Abandoned Mine Sinking Fund by the State
Treasurer. All of such moneys not necessary to pay ac-
cruing interest shall be invested in such securities as
are provided by law for the investment of the sinking
funds of the state.
(b) The investment of such moneys and the accumula-
tions thereon in the Abandoned Mine Sinking Fund shall be
devoted to and be used exclusively for the payment of the
interest accruing on such bonds and notes and for the
redemption of such bonds at maturity. The issuing offi-
cials are authorized at any time to use any of such funds
for the purchase and retirement of all or any part of the
bonds issued under the authority of this Act. In the
event that all or any part of said bonds shall be pur-
chased by the state, they shall be cancelled and returned
to the State Treasurer, as cancelled and paid bonds and
thereafter all payments of interest thereon shall cease
and the cancelled bonds and coupons shall be destroyed
within two years after cancellation in the presence of the
issuing officials.
5.205 - Abandoned Mine Reclamation Fund.
(a) An Abandoned Mine Reclamation Fund is hereby
created.
(b) All proceeds from the sale of bonds under Sec-
tions 5.201 - 5.204 shall be paid into the Abandoned Mine
Reclamation Fund.
(c) The moneys in the Abandoned Mine Reclamation
Fund are hereby specifically dedicated to meeting the
capital costs of reclamation facilities and projects
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designed to correct adverse environmental effects from
mining operations which were inactive as of the effective
date of this Act. If the Bureau undertakes to construct
a reclamation facility or project which is designed to
correct adverse environmental effects from several mining
operations, some of which were inactive as of the effec-
tive date of this Act and some of which were then active,
the Bureau shall develop a cost sharing formula which
equitably allocates cost between such inactive and active
operations.
Part Three
General Reclamation Fund
5.301 - Creation and Purpose.
There is hereby created a General Reclamation Fund.
The moneys in the General Reclamation Fund are hereby
specifically dedicated to the fulfillment of the mandates
of this Act. By way of illustration, but not limitation,
moneys may be used to meet the costs of the Bureau's expenses
for: administration and operation, maintenance and
repairs of reclamation facilities and projects, and the
capital costs of reclamation facilities and projects not
subject to reimbursement out of the Abandoned Mine
Reclamation Fund created by Section 5.205 of this Act.
5.302 - Source of Proceeds.
The following moneys shall be paid into the General
Reclamation Fund:
(a) all moneys received by the state as a result
of the civil or criminal liability of mine operators under
this Act, or under any other statute or common law which
permits the state to receive damages or penalties because
of adverse environmental effects from mining operations;
(b) all moneys payable as a result of forfeiture of
performance bonds or security deposits under Section 3.213
of this Act;
(c) all charges collected under Section 3.209 of
this Act;
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(d) all proceeds from the severance tax levied under
Section 3.301 of this Act;
(e) all proceeds from the sale of land under Section
4.303 of this Act;
(f) such moneys as the legislature may from time to
time appropriate.
Comments to ARTICLE 5.
Appreciation of the limitations of Article 5
is as important as an appreciation of its sub-
stance. The draftsmen of the statute harbor
no illusion that they have mastered the intri-
cacies of the budgetary and bonded indebtedness
procedures of the several states. Bringing the
statute into compliance with these norms is
left to the Attorneys General of the states.
But lurking beneath the technicalities
of the Article are some basic value judgments.
First, it is decided the cost of remedying
adverse environmemtal side effects resulting
from mining operations undertaken before this
Act went into effect, should be paid from
general revenues (except to the extent that
there are persons liable for such costs under
the prior law). This decision is implemented
in Sections 5.201 through 5.205,by authoriza-
tion for the floating bonds the proceeds of
which are to be paid into the Abandoned Mine
Reclamation Fund created by Section 5.205
which is earmarked for reclaiming inactive
mines. The bonds are to be repaid from gen-
eral revenues. This is essentially the
procedure which has already been employed in
Pennsylvania.
It should be remembered, as discussed in
Chapter 6 of the study, that there are consti-
tutional problems with such a debt incurrence
in all four states. Pennsylvania amended its
constitution in order to bring about its extant
program. It is also important to note that
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special revenue bond financing is peculiarly
unsuited for financing reclamation projects.
Because of the transient nature of mining
operations, user fees may prove inadequate to
repay the indebtedness. Hence this method of
avoidance of constitutional strictures
general state indebtedness is not practicably
available. Therefore state constitutional
amendments may be necessary prior to implement-
ing these provisions.
The second basic value judgment is that
the cost occasioned by failure of this Act to
preclude future environmental degradation
ordinarily should be borne either by the
mine operator who occasions the degradation
or the mining industry generally. This decision
is implemented by creation, under Section 5.301,
of a General Reclamation Fund. Into this fund
are paid damages and penalties recovered by the
Bureau, the proceeds of forfeited performance
bonds and security deposits, proceeds from
the severance tax on miners, and supplementary
contributions from the legislature. This fund
is then earmarked for use in cleaning up
post-Act problems and for the expenses of ad-
ministering the Bureau.
Sections 5.101 and 5.102 outline the
Bureau's budgetary procedures. They also
account for the possibility that Federal funds
may be available to help defray costs.
ARTICLE 6,
GENERAL PROVISIONS
Part One
Administrative Procedures
6.101 - Rules and Regulations.
(a) The Bureau shall adopt and may amend and repeal
rules of procedure for all activities it is authorized to
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undertake and for promulgation of regulations.
(b) The Bureau shall provide for the editing, publish-
ing, compiling and indexing of all its rules and regulations,
(c) Any person or governmental agency may petition
the Bureau requesting the promulgation, amendment or repeal
of any rule or regulation. The Bureau shall prescribe by
rule the form for such petitions and the procedure for
their submission, consideration and disposition.
6.102 - Notice.
(a) Whenever notice is required it shall be given, in
addition to any other method required by this Act, by
publication once a week for two successive weeks in a
newspaper having general circulation in the area or areas
of the state to be affected by the proposed action of the
Bureau. If the purpose is to give notice of a proposed
public hearing, the notice shall identify the subject or
subjects to be considered and specify the place and time,
not less than ten days after final publication, or one
day after final publication for a public hearing following
suspension of a permit without a hearing. In addition to
newspaper publication, notice of the proposed action of the
Bureau, or of the public hearing, shall be posted in a
conspicuous place at the offices of the Bureau. The Bureau
may provide for other means of giving notice to the end
that all persons and governmental agencies having an inter-
est in the subject may reasonably be apprised thereof.
(b) The notice need not contain the entire text,
plan, or detail of the proposed action of the Department or
of the subject matter of the hearing, but shall reasonably
identify the proposed action and state the place at which
the entire text, plan, or detail, if any, may be examined
or how it may be obtained.
6.103 - Hearings.
(a) Any hearing required by this Act shall be a public
hearing. Any person or governmental agency claiming to have
an interest in the subject matter of the proposed action by
the Bureau shall be entitled to submit data or views at the
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public hearing.
(b) The Bureau in the conduct of hearings may admit
and give probative force to evidence which possesses
probative value commonly accepted by reasonably prudent
men in the conduct of their affairs and may take notice
of judicially cognizable facts and other general, tech-
nical, or scientific facts within its specialized knowledge.
(c) Bureau hearings may be conducted by the Director
or by such person or persons as the Director may desig-
nate. The Director or any person authorized by the Dir-
ector may administer oaths and affirmations, examine
witnesses and receive evidence at a hearing. Any willful
false swearing or affirming at a hearing as to any material
fact shall be deemed perjury under the law of the state.
(d) Any final order, decision of action taken after
hearing shall be in writing or stated in the record and
shall be accompanied by findings of fact and conclusions
of law.
6.104 - Subpoenas.
The Director or any persons authorized by the Director
may issue subpoenas in the name of the Bureau to compel
witnesses to appear and testify or to produce books,
records, papers, documents or other tangible forms of
evidence relating to any matter within the authority of
the Bureau.
Part Two
Enforcement by the Bureau
6.201 - General.
The Bureau may bring any appropriate action, in the
name of the state to carry out the provisions of this Act,
the regulations promulgated thereunder, and to enforce all
laws relating to the adverse environmental effects of mining
operations.
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6.202 - Issuance of Compliance Orders.
If the Bureau determines that there is or is likely
to be a vaiolation of the terms of a permit, or of this
Act, the regulations promulgated thereunder or any other
law relating to the adverse environmental effects of min-
ing operations, it may, after notice and hearing, order
any persons or governmental agencies responsible to engage
in reclamation operations necessary to avoid or correct
the adverse environmental effects within a time and in a
manner satisfactory to the Bureau.
6.203 - Reclamation by the Bureau.
If the recipient of a compliance order under Section
6.202 is unable or unwilling to comply, or if there is no
responsible person to whom an order may be issued, the
Bureau may engage in reclamation operations necessary to
avoid or correct the adverse environmental effect.
6.204 - Right of Entry.
The Bureau shall have the right to enter at all reas-
onable times in or upon the mined area or any other private
or public property for the purpose of inspecting and
investigating conditions relating to the adverse environ-
mental effects of mining operations, or to avoid or
correct adverse environmental effects pursuant to Section
6.203.
6.205 - Injunct ive Relief.
The Bureau may enforce or require compliance with any
provision of this Act or any rule, regulation, decision or
order by injunction.
6.206 - Civil Liabi1ity.
In addition to the penalties imposed by other provi-
sions of this Act, all persons or governmental agencies
responsible for a violation of the terms of a permit, or
of this Act, or of the regulations promulgated thereunder,
shall be jointly and severally liable to the Bureau for
the damages occasioned. The measure of damages shall be
204
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the actual or estimated cost of avoiding or correcting
the adverse environmental effects resulting from such
violation, plus an estimate of the environmental loss
to the state's resources caused by the violation.
6.207 - Penal Sanctions.
In addition to the civil liability imposed by other
provisions of this Act, all persons responsible for violat-
ing the terms of a permit, any provisions of this Act or
the regulations promulgated thereunder, other than
those of a procedural nature or relating solely to the
internal management of the Bureau, shall be guilty of a
misdemeanor and, upon conviction, shall be punished by
a fine not exceeding five hundred dollars ($500.00 ) for
each offense. The penal sanctions herein provided shall
not apply to any failure or refusal to pay charges or
taxes levied by this Act. Each day during which a vio-
lation occurs shall be deemed a separate and additional
violation. The employees of the Bureau assigned to law
enforcement duties and all other law enforcement officers
shall enforce the provisions of this Act and the regula-
tions of the Bureau, and may make arrests for violation
thereof.
Part Three
Relationship to Common Law and Severability
6.301 - Relationship to Common Law.
This Act and the regulations promulgated thereunder
shall not be construed as in derogation of the common law,
and common law liabilities for nuisance, trespass, viola-
tion of riparian rights, or other grounds, shall continue
in force and effect.
6.302 - Severability.
If any provisions of this Act or the application
thereof to any person or governmental agency is held
invalid, such invalidity shall not affect the other pro-
visions or any other application of the Act which can
be given effect without the invalid provision or applica-
205
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tion of the Act which can be given effect without the
invalid provision or application, and to this end the
provisions of this Act are declared to be severable.
Comments to ARTICLE 6.
Article 6 contains general provisions
prescribing administrative procedures and
enforcement powers of the Bureau not specified
elsewhere in the Act, civil and criminal
liabilities, the effect of the Act on common
law rights and liabilities and the traditional
severance clause.
Provision for judicial review is omitted
on the assumption that other state statutes
adequately provide for it. Sections 6.201
and 6.205-6.208 elaborate on the judicial
rights of action available to the state for
compliance, damages and criminal penalties.
Sections 6.202 and 6.203 specify the Bureau's
power to order compliance with the Act and to
engage in reclamation activities itself if the
recipient of a compliancd order is unable or
unwilling to comply, or if there are no respon-
sible persons available. Section 6.204 grants
the Bureau a right of entry to inspect and to
engage in reclamation activities; this right
extends both to the mined area and to other
property where necessary to carry out acti-
vities on the mined area.
Section 6.301 is a response to the often
litigated question of whether a scheme of public
regulations abrogates existing private and
public common law remedies relating to the same
problem. Its answer is that there is no such
pre-emption, thereby leaving in force remedies
of nuisance, trespass and violation of riparian
rights which may impose financial responsibility
for the adverse environmental effects from
mining operations.
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CREDITS AND ACKNOWLEDGEMENTS
Professors Everett F. Goldberg and Garrett Power,
both of the University of Maryland School of Law, directed
the project and take editorial responsibility for prepar-
ing the final report. They were aided in this undertaking
by the following contributors.
Henry P. Stetina of the Office of
General Counsel, EPA, and the
Project Officer, gave freely of
his time and special insights.
Kenneth L. Lasson prepared A His-
tory of Appalachian Coal Mines.
He was assisted on the research
by Kathy Allamong, a senior in
the Department of Political
Science at Goucher College.
Paul Bugg and Gene E. Mumy , grad-
uate students in the Department of
Geography and Environmental Engin-
eering at The Johns Hopkins Univ-
ersity, prepared the initial draft
of Coal Mining in Maryland: An
Economic Case Study.
Harry Buckley, Director, Maryland
Bureau of Mines, Donald Moran, Moran
Coal Company, Z.E. Murphy, U.S.
Bureau of Mines, John Reckner, Soil
Conservation Supervisor for Allegany
Co., Md., Michael Rodevick, Maryland
Department of Water Resources, and
Dr. Kenneth Weaver, Director, Mary-
land Geological Survey, gave time and
information and especially assisted
207
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in preparation of the case study
on Maryland coal mines.
Roy B. Cowdrey, Jr., a student at
the University of Maryland Law
School, was research assistant to
the project directors.
The project directors also wish to acknowledge
the assistance of the following persons: Elizabeth A.
Statuta, Susan D. McColl, Ezra Siff, Anthony H. Gamboa,
Edward T. Colbert and Carol A. Wildesen, law students who
provided research assistance; Ellen Austin and Kathy
Newman, who served as secretaries to the project; and
government officials in Maryland, Ohio, Pennsylvania, West
Virginia and the federal government who gave of their
time and knowledge.
A significant objective of this project was to determine
what legal step may be taken by the states to abate, control and
prevent water pollution from mining activities. Such research projects,
intended to assist in the prevention of water pollution by industry
are required by Section 6b of the Water Pollution Control Act, as
amended. This project of the Environmental Protection Agency was
conducted under the direction of the Pollution Control Analysis Section,
Ernst P. Hall, Chief, Dr. James M. Shackelford, Project Manager and
Henry Stetina, Project Officer.
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REFERENCES
1. See R. Bruere, COMING OF COAL 5 (Assn. Press, New
York, 1922) and H. Eavenson, FIRST CENTURY AND A
QUARTER OF AMERICAN COAL INDUSTRY 1-30 (Johnson Reprint
Corp., New York, 1942).
2. See J. Mumford, ANTHRACITE 5-7 (Industries Pub. Co.,
New York, 1925) and W. Nicolls, STORY OF AMERICAN
COALS (Lippincott, Phila., 1897).
3. See generally, J. Mumford, supra note 2, at 10-12.
4. See J. Esposito, AIR AND WATER POLLUTION: WHAT TO
DO WHILE WAITING FOR WASHINGTON, 5 Harv. Civ. Rights
-Civ. Lib. L. Rev. 39 (1970).
5. H. Eavenson, supra note 1, at 3, 44.
6. Ibid, at 15.
7. M. Thomas, BLACK DIAMONDS 7 (Newson & Co., New York,
1941).
8. H. Eavenson, supra note 1, at 29.
9. Ibid, at 9.
10. Ibid, at 16.
11. Ibid, at 7, 32, 227.
12. Ibid, at 229.
13. Ibid. at 26, 140
14. STUDIES IN BUSINESS AND ECONOMICS: COAL IN THE MARYLAND
ECONOMY: 1736-1965, Univ. of Md., Bureau of Business and
Economic Research, Vol. 7, No. 3,(College Park, 1953).
15. J. Mumford, supra note 2, at 43.
16. H. Eavenson, supra note 1, at 185.
209
-------
17. Ibid, at 4.
18. J. Mumford, supra note 2, at 13; M. Thomas, supra
note 7, at 8; H. Eavenson, supra note 1, at 150.
19. H. Eavenson, supra note 1, at 165.
20. Ibid, at 168.
21. Ibid, at 173.
22. Ibid, at 180.
23. Ibid, at 254.
24. Ibid, at 190-91.
25. Ibid, at 150.
26. Ibid, at 239, 253.
27. Ibid, at 377.
28. M. Sheppard, CLOUD BY DAY: A STORY OF COAL & COKE,
& PEOPLE 5 (U. of N.C. Press, Chapel Hill, N.C.,
1947).
29. H. Caudill, NIGHT COMES TO THE CUMBERLANDS: A
BIOGRAPHY OF A DEPRESSED AREA 11-45, (Little, Brown
& Co., Boston, 1963).
30. H. Eavenson, supra note 1, at 151, 378.
31. W. Coleman, MOLLY MAGUIRE RIOTS: INDUSTRIAL CONFLICT
IN THE PENNSYLVANIA COAL REGION 4, 156-168 (Arno Press,
New York, 1969).
32. M. Coleman, MEN & COAL 45-53 (Arno Press, New York,
1969) .
33. L. Mitchell, MY COUNTRY 'TIS OF THEE 182 (Macmillan,
New York, 1940).
34. R. Gilluly, THE COMPETITIVE COMEBACK OF COAL, Science
News, Jan. 30, 1971, at 84.
210
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35. See Table 1, at p. 25 in text.
36. P. Bernstein, THE STRIPPERS, Harrisburg Patriot
News, March 21, 1971.
37. SCRAMBLE FOR COAL, Fortune, September, 1970, at 79.
38. R. Gilluly, supra note 34, at 85.
39. Paraphrased from article by D. Nevin, THESE MURDERED
MOUNTAINS, Life, Jan. 12, 1968, at 63-67.
40. Quoted in D. Nevin, supra note 39, at 63.
41. Appalachian Regional Commission, ACID MINE DRAINAGE
IN APPALACHIA, H.R. Doc. No. 91-180, 91st Cong., 1st
Sess. XXIV (1969).
42. U.S. Army Corps of Engineers, Office of Appalachian
Studies, THE INCIDENCE AND FORMATION OF MINE DRAINAGE
POLLUTION 11-12 (1969). This study is Appendix C to
ACID MINE DRAINAGE IN APPALACHIA, supra note 41.
43. Except as noted, the material in this section on
mining methods is based primarily upon National Coal
Association, BITUMINOUS COAL FACTS at 12-17 (Washington,
1970) and U.S. Dep't. of Interior, SURFACE MINING AND
OUR ENVIRONMENT 33-49 (1967).
44. 1-2 U.S. Dep't. of Interior, Bureau of Mines, MINERALS
YEARBOOK 1969, at 322-323 (1971). The annual Minerals
Yearbooks are hereinafter cited by title and year.
45. Ibid.
46. For a survey of surface mining techniques, see
SURFACE MINING AND OUR ENVIRONMENT, supra note 43,
at 32.
47. See Table 2, at p. 26 in text.
48. Re airborne dusts, see: Folmar v. Elliot Coal Mining
Company, Inc. 441 Pa. 592, 272 A.2d 910 (1971); Brown
v. Turner Coal Co., Civ. No. 1542 (Cir. Ct. W.Va.,
filed Dec. 31, 1970), 1 E.L.R. Dig. 148.
211
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49. National Coal Association, supra note 43, at 14.
50. 1-2 MINERALS YEARBOOK 1969, supra note 44, at 376.
See also U.S. Army Corps of Engineers, supra note
42, at 19.
51. U.S. Army Corps of Engineers, supra note 42, at 17.
52. Ohio State University Research Foundation, ACID MINE
DRAINAGE FORMATION AND ABATEMENT, Water Pollution
Control Research Series 14010 FPR 04/71, Environmental
Protection Agency, 44, 55, 68 (1971).
53. Also temperature and pH at the surface. See E. Smith
and K. Shumate, Rate of Pyrite Oxidation and Acid
Production Rate in the Field, Paper presented at the
Acid Mine Drainage Workshop, Ohio University, Athens,
Ohio, Aug. 2, 1971, at 2, 7.
54. W. Lorenz and R. Stephan, FACTORS THAT AFFECT THE
FORMATION OF COAL MINE DRAINAGE POLLUTION IN
APPALACHIA 47 (U.S. Dep't. of Interior, Bureau of
Mines, Pittsburgh, 1967). This study is Attachment
C to U.S. Army Corps of Engineers, supra note 42.
55. Ohio State University Research Foundation, supra
note 52, at 33, 69.
56. SURFACE MINING AND OUR ENVIRONMENT, supra note 43,
at 63.
57. See Ohio State University Research Foundation,
supra note 52, at 1, 9, 10, 23, 24, 33. The authors
of that study suggest as little as one or two centi-
meters may be a sufficient water shield.
58. Ibid, at 23, 58.
59. See ACID MINE DRAINAGE IN APPALACHIA, supra note 41,
at 21; E. Smith and K. Shumate supra note 53, at 6-7.
60. ACID MINE DRAINAGE IN APPALACHIA, supra note 41, at
41-42.
212
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61. Ohio State University Research Foundation, supra note
52 at 14, 21, 31.
62. ACID MINE DRAINAGE IN APPALACHIA, supra note 41, at 33.
63. ACID MINE DRAINAGE IN APPALACHIA, supra note 41, at 36.
64. U.S. Public Health Service, ACID MINE DRAINAGE, H.R.
Comm. Print No. 18, Coirun. on Public Works, 87th Cong.,
2d Sess. 2 (1967); ACID MINE DRAINAGE IN APPALACHIA,
supra note 41, at 33.
65. ACID MINE DRAINAGE IN APPALACHIA, supra note 41, at
27, 33; U.S. Army Corps of Engineers, supra note 42,
at 10-11.
66. See ACID MINE DRAINAGE IN APPALACHIA, supra note
41 at 8-13, 67-110. For a detailed discussion of the
effects of acid mine drainage, see the appendices to
that report; in particular, Appendices A (THE IMPACT
OF MINE DRAINAGE POLLUTION ON INDUSTRIAL WATER USERS
IN APPALACHIA); D((THE IMPACTS OF MINE DRAINAGE
POLLUTION ON LOCATION DECISION OF MANUFCATURING
INDUSTRY IN APPALACHIA); E (IMPACT OF MINE DRAINAGE
ON RECREATION AND STRESS ECOLOGY), and F (THE
BIOLOGICAL AND ECOLOGICAL EFFECTS OF ACID MINE
DRAINAGE).
67. The text in this subsection is based primarily on
ENGINEERING ECONOMIC STUDY OF MINE DRAINAGE CONTROL
TECHNIQUES (Cyrus Wm. Rice & Co.,Pittsburgh, 1969),
which is Appendix B to ACID MINE DRAINAGE IN
APPALACHIA, supra note 41.
68. The text in this subsection is based primarily on
Ohio State University Research Foundation, supra
note 52, at 57-73, and ENGINEERING ECONOMIC STUDY,
supra note 67.
69. E. Smith and K. Shumate, supra note 53, at 2, 10.
70. See ENGINEERING ECONOMIC STUDY, supra note 67, at 74.
71. U.S. Army Corps of Engineers, supra note 42, at 12; see
also ENGINEERING ECONOMIC STUDY, supra note 67 at 74.
213
-------
72. ACID MINE DRAINAGE IN APPALACHIA, supra note 41,
at 120.
73. ABATEMENT OF POLLUTION FROM ABANDONED MINES IN
PENNSYLVANIA - A PROGRESS REPORT, March 1, 1970 at 2
(Pa. Dep't. of Health, Sanitary Water Board, Publi-
cation no. 26).
74. Gwin Engineers Inc., REPORT ON SLIPPERY ROCK CREEK
MINE DRAINAGE POLLUTION ABATEMENT PROJECT (Common-
wealth of Pennsylvania, Operation Scarlift) 10-15
(1970).
75. ACID MINE DRAINAGE IN APPALACHIA, supra note 41, at 116.
76. SURFACE MINING AND OUR ENVIRONMENT, supra note 43,
at 64 (1967); S. Brock and D. Brooks, THE MYLES JOB
MINE 37 (W.Va. Univ. Appalachian Center, Office of
Research and Development, Research Series 1, Morgan-
town, 1968).
TI . SURFACE MINING AND OUR ENVIRONMENT, supra note 43,
at 54.
78. Ibid, at 63; cf. S. Brock and D. Brooks, supra note
76, at 37.
79. U.S. Dep't. of Agriculture, RESTORING SURFACE-MINED
LAND, Publication No. 1082, in Hearings on Surface
Mining Reclamation before the Senate Comm. on
Interior and Insular Affairs, 90th Cong., 2d Sess.
77 (1968).
80. SURFACE MINING AND OUR ENVIRONMENT, supra note 43,
at 54.
81. Ibid, at 64.
82. See ACID MINE DRAINAGE IN APPALACHIA, supra note 41,
at 27; U.S. Army Corps of Engineers, supra note
42, at 18-19; S. Brock and D. Brooks, supra note 76,
at 37-38; SURFACE MINING AND OUR ENVIRONMENT, supra
note 43, at 54, 63, 64.
214
-------
83. SURFACE MINING AND OUR ENVIRONMENT, supra note 43,
at 54, 83. See W.Va. Code Ann. Sec.20-6-13 (Advance
Copy 1971); Md. Bureau of Mines, Reg. No. 1, sec.1.10
(b) (3) (1970) .
84. See S. Brock and D. Brooks, supra note 76, at 32,
36; SURFACE MINING AND OUR ENVIRONMENT, supra note
43 at 82.
85. SURFACE MINING AND OUR ENVIRONMENT, supra note 43,
at 74, 82.
86. Ibid, at 56, 82.
87. U.S. Army Corps of Engineers, supra note 42, at 19.
88. SURFACE MINING AND OUR ENVIRONMENT, supra note 43,
at 83.
89. Ibid, at 54.
90. Ibid, at 56.
91. See New York Times, Aug. 30, 1971, at 22, col. 1.
Regarding strip mining in a state park, see Dep't.
of Forests and Parks v. Georges Creek Coal and Land
Co., 250 Md. 125, 242 A.2d 165 (1968), cert, denied,
393 U.S. 935 (1969).
92. S. Brock and D. Brooks, supra note 76, at 32.
93. Ibid, at 29-33.
94. Ibid, at 31.
95. Except as noted, this section on subsidence is based
upon: W. Cochran, MINE SUBSIDENCE - EXTENT AND COST
OF CONTROL IN A SELECTED AREA. (U.S. Dep't. of Inter-
ior, Bureau of Mines, Information Circular 8507,
1971); R. Fleming, SUBSIDENCE FROM A MINING ENGINEER'S
POINT OF VIEW, which is Appendix A to REPORT OF THE
SUBSIDENCE COMMITTEE, Pa. Gen. Ass., Legislative
Journal, Appendix 4245, 4249 (1957); ENVIRONMENTAL
EFFECTS OF UNDERGROUND MINING AND OF MINERAL PROCESSING
2 15
-------
(unpublished report in U.S. Dep't. of Interior, Bureau of
Mines; no date); see also. J. Zwartendyk, ECONOMIC ASPECTS
OF SURFACE SUBSIDENCE RESULTING FROM UNDERGROUND MINERAL
EXPLOITATION. (Ph.D. Thesis, Graduate School, Dep't. of
Mineral Economics, Pennsylvania State University, March
1971) .
96. W. Cochran, supra note 95, at 1, 24.
97. ENVIRONMENTAL EFFECTS, supra note 95, at 17, 71-72.
98. Ibid, at 53, 81-82.
99. W. Cochran, supra note 62, at 24.
100. Ibid, at 5, 15, 24.
101. Ibid, at 15.
102. Except as noted, the material in this section is
based upon ENVIRONMENTAL EFFECTS, supra note 95, at
19, 20, 138-160, 170-171. See also SURFACE MINING
AND OUR ENVIRONMENT, supra note 43, at 68-69.
103. See Commonwealth ex rel County of Allegheny v.
Toth, 189 Pa. Super. 552, 152 A.2d 284 (1959).
104. Black's Law Dictionary 453 (West, St. Paul, 4th ed.
1951) .
105. Appeal of Mathies Coal Co., 435 Pa. 129, 255 A.2d
906 (1969). Chandler v. French, 73 W.Va, 658,
81 S.E. 825 (1914).
106. cf. Smith v. Glen Alden Coal Co., 347 Pa. 290, 32
A.2d 227,234 (1943).
107. R. Donley in 3 AMERICAN LAW OF MINING sec.16.1
(Mathew Bender, New York, 1970).
108. Ibid. See also P. Madeira, Jr., LEASES OF MINERALS
AS ABSOLUTE SALES — THE PENNSYLVANIA DOCTRINE,
74 U.Pa.L.Rev. 42, 61 (1915).
216
-------
109. P. Madeira, Jr., supra note 108, at 61; R. Donley,
THE LAW OF COAL, OIL AND GAS IN WEST VIRGINIA AND
VIRGINIA sec.65a (Michie, Charlottesville, Va.,
1951).
110. 3 AMERICAN LAW OF MINING, supra note 107, sees.16.36,
16.38-16.40.
111. R. Donley in 3 AMERICAN LAW OF MINING, supra note
107, sec.16.1.
112. Hummel v. McFadden, 395 Pa. 543, 150 A.2d 856, 860
(1959).
113. .Ibid.
114. R. Donley, supra note 109, sec.109.
115. Cf. Bankers' Pocahontas Coal Co. v. Central Poca-
hontas Coal Co., 113 W. Va. 1, 166 S.E. 491 (1932);
Babcock Coal & Coke Co. v. Brackens Creek Coal
Land Co., 128 W.Va. 676, 37 S.E.2d 519 (1946).
116. Boron v. Smith, 380 Pa. 98, 110 A.2d 169 (1955);
see also Smith v. Glen Alden Coal Co., 347 Pa. 290,
32 A.2d 227, 234 (1943).
117. See P. Madeira, Jr., supra note 108.
118. 3 AMERICAN LAW OF MINING, supra note 107, sec.16.16;
Chandler v. French, 73 W.Va. 658, 81 S.E. 825 (1914);
Hummel v. McFadden, 395 Pa. 543, 150 A.2d 856 (1959).
119. 73 W.Va. 658, 81 S.E. 825 (1914). On abandonment,
see the cases collected in Annot., 60 A.L.R. 901,
926 (1929), supplemented in Annot., 76 A.L.R.2d
721, 743 (1961).
120. Gilberton Contracting Co. v. Hook, 255 F. Supp.
687 (E.D.Pa. 1966). Here, the refuse was silt from a
breaker operation, deposited in layers by two dif-
ferent lessee operators. One operator was held to have
abandoned the silt, having cast it away as worthless
landfill. The other operator sold some of his, however,
217
-------
and was held not to have abandoned it even after he
gave up operation of the breaker and the surface
was purchased by a third party. The sale reflected
an intention not to abandon.
121. Cf. In re Appropriation of Easements for Highway
Purposes, 174 Ohio St. 441, 190 N.E.2d 446 (1963).
The owner of a hillside was held to own waste stone
dumped from a quarry at the top of his land during
operations which took place before he acquired
the land. The stone was said to have become appurt-
enant to the land; therefore he was entitled to
compensation for it in a condemnation action.
122. See Fisher v. West Virginia Coal & Transportation
Co.,137 W.Va. 613, 73 S.E.2d 633 (1952); Moore v.
Indian Camp Coal Co., 75 Ohio St. 493, 80 N.E. 6 (1907);
Westerman v. Pennsylvania Salt Mfg. Co., 260 Pa. 140,
103 A. 539 (1918); Annot., 83 A.L.R.2d 665 (1962);
USE OF THE SURFACE AND UNDERGROUND PASSAGES TO AID
MINING OPERATIONS ON OTHER TRACTS OF LAND, 13 St.Louis
U.L.J. 106 (1968). Cf. Tate v. United Fuel Gas Co.,
137 W.Va. 272, 71 S.E.2d 65 (1952); Cramer v. Alberts,
395 Pa. 510, 150 A.2d 840 (1959).
123. See H. Caudill, supra note 29, at 70-76 (describing
mineral acquisitions in eastern Kentucky).
124. For a discussion of the cloud on titles created by
such exceptions and reservations, and a statute
designed to meet the problem, see Love v. Lynchburg
Nat'l Bank and Trust Co., 205 Va. 860, 140 S.E.2d
650 (1965) .
125. Hester v. United States, 265 U.S. 57, 59 (1924).
126. Cf. Dunn v. County of Ramsey, -Minn.-, 184 N.W.2d
773 (1971) (local government liable for flooding
caused by spoil dam created by road contractor with-
out obtaining an easement, although the attempt to
obtain one was made.
127. 113 Pa. 126, 6 A. at 453, 457 (1886).
218
-------
128. McCune v. Pittsburgh & B. Coal Co., 238 Pa. 83,
85 A. 1102 (1913) .
129. 281 Pa. 233, 126 A. 386, 391 (1924).
130. 79 Ohio St. 263, 87 N.E. 174, 176 (1909).
131. Black's Law Dictionary, supra note 104, at 1551.
132. 60 W.Va. 27, 53 S.E. 776, 777 (1906).
133. 180 Md. 395, 24 A.2d 788, 790 (1942).
134. Eidemiller v. Keystone Coal & Coke Co., 15 Pa.
D & C 759 (1930); North-East Coal Co. v. Hayes, 244
Ky. 639, 51 S.W.2d 960 (1932). But see Pottstown
Gas Co. v. Murphy, 39 Pa. 257 (1861) .
135. Wheatly v. Baugh, 25 Pa. 528, 64 Am. Dec. 721 (1855);
Pence v. Carney, 58 W.Va. 296, 52 S.E. 702 (1905) ;
Sinclair Refining Co. v. Keister, 64 F.2d 537 (6th
Cir. 1933) (Ohio law); Western Md. R.R. Co. V.
Martin, 110 Md. 554, 73 A. 267 (1909) (dicta).
136. Cf. Gladfelter v. Walker, 40 Md. 1 (1874); Reserve
Mining Co. v. Minnesota Pollution Control Agency
2 E.R.C. 1135 (Dist. Ct. Minn. 1970). A proffer by
the defendant that he had employed the most modern
techniques available in an effort to prevent surface
water run off was rejected as a defense in Straight
v. Hover, 79 Ohio St. 263, 87 N.E. 174 (1909); accord,
Day v. Louisville Coal & Coke Co., 60 W.Va. 27, 53
S.E. 776 (1906).
137. 129 W.Va. 832, 42 S.E.2d 46, 48 (1947).
138. Franklin v. Cellicoat, 950 Ohio App. 345, 119 N.E.2d
688, 689-690 (1954).
139. 374 Pa. 262, 97 A.2d 825 (1953).
140. Ibid., 97 A.2d at 827.
141. Stewart v. Chernicky, 439 Pa. 43, 266 A.2d 259,
261, 263 (1970).
219
-------
142. Commonwealth v. Fitzmartin, 376 Pa. 390, 102 A.2d
893, 894 (1954).
143. 250 Md. 125, 242 A.2d 165, 166-167 (1968).
144. Ibid. , 242 A.2d at 166-167.
145. See e.g., Mullan v. Hacker, 187 Md. 261, 49 A.2d
640 (1946).
146. Finley v. Teeter Stone, Inc., 251 Md. 428, 248 A.2d
106, 116 (1968); Lugin v. Dobson, 376 Pa. 620, 104
A.2d 95, 97 (1954); Harrison v. McOwen, 126 W.Va.
933, 30 S.E.2d 740 (1944); Ohio Collieries Co. v.
Cocke, 107 Ohio St. 238, 140 N.E. 356, 361 (1923).
147. See Mullan v. Hacker, 187 Md. 261, 49 A.2d 640
(1946); Weaver v. Foundation Co., 310 Pa. 310, 165
A. 381 (1933); Ohio Collieries Co. v. Cocke 107
Ohio St. 238, 140 N.E. 356 (1923); Walker v. Stros-
nider, 67 W.Va. 39, 67 S.E. 1087 (1910).
148. Lugin v. Dobson, 376 Pa. 620, 104 A.2d 95 (1954);
Winnings v. Wilpen Coal Co., 134 W.Va. 387, 59 S.E.2d
655 (1950).
149. Ohio Collieries Co. v. Cocke, 107 Ohio St. 238,
140 N.E. 356 (1923) .
150. Piedmont & Georges Creek Coal Co. v. Kearney,
114 Md. 496, 79 A. 1013, 1015 (1911). RESTATEMENT
OF TORTS, sec.819, Comment (f) (American Law Insti-
tute, St. Paul, Minn.,, 1939).
152. Bonaparte v. Wiseman, 89 Md. 12, 42 A. 918 (1899);
Conrad v. Fleming, 89 Ohio App. 485, 102 N.E.2d 850,
851 (1951).
153. Beaver v. Hitchcock, 151 W.Va. 620, 153 S.E.2d
886 (1967); Leebov v. United States Fidelity and
Guaranty Co., 401 Pa. 472, 166 A.2d 82, 85 (1960).
154. Ohio Rev. Code Ann. sec.723.49 (Page 1953); but
compare Ohio Rev. Code Ann. sec.723.50 (Page 1953)
220
-------
which allows excavations to the depth of the founda-
tion of adjoining buildings even if greater than
nine feet.
155. Noonan v. Pardee, 200 Pa. 474, 50 A. 255 (1901).
156. 37 Ohio App. 38, 170 N.E. 379, 381 (1929).
157. Piedmont & Georges Creek Coal Co. v. Kearney, 114
Md. 496, 79 A. 1013 (1911).
158. 266 Pa. 444, 109 A. 796 (1920).
159. Walker v. Strosnider, 67 W.Va. 39, 67 S.E. 1087,
1090 (1910).
160. Kuhn v. Carling, 196 Md. 318, 76 A.2d 345 (1950);
RKO Midwest Corp. v. Berling, 51 Ohio App. 85, 199
N.E. 604 (1935); Langabaugh v. Anderson, 68 Ohio St.
131, 67 N.E. 286 (1903); Stewart v. Chernicky, 439
Pa. 43, 266 A.2d 259 (1970); Greek Catholic Congrega-
tion of Borough of Olyphant v. Plummer, 338 Pa. 373,
12 A.2d 435 (1940). As to liability of a lessor
when a lessee removes surface support, see 3 AMERI-
CAN LAW OF MINING, supra note 107, at sec.16.84
161. School District of Borough of Shenandoah v. City of
Philadelphia, 367 Pa. 180, 79 A.2d 433 (1951), cert.
denied, 342 U.S. 821 (1951). See also Greek Catholic
Congregation of Borough of Olyphant v. Plummer, 338
Pa. 373, 12 A.2d 435 (1940); and Offerman v. Starr,
2 Pa. 394, 44 Am. Dec. 217 (1845).
162. O'Dell v. McKenzie, 150 W.Va. 346, 145 S.E.2d 388
(1965). Cf. Beuke v. Boggs Run Mining & Mfg. Co.,
100 W.Va. 141, 130 S.E. 132 (1925); Reed v. Janutolo,
129 W.Va. 563, 42 S.E.2d 16 (1946).
163. Langabaugh v. Anderson, 68 Ohio St. 131, 67 N.E.
286 (1903) (dicta).
164. School District of Borough of Shenandoah v. City of
Philadelphia, 367 Pa. 180, 79 A.2d 433 (1951), cert.
denied, 342 U.S. 821 (1951).
221
-------
165. 1959 Op. Att'y. Gen. (Ohio) 766, 768, construing
Ohio Rev. Code Ann. sec.3767.02 (Page 1971).
166. See RESTATEMENT OF TORTS, supra note 151, sec.839
(liability of possessors); cf. RESTATEMENT (SECOND)
OF TORTS sec.366 (American Law Institute, St. Paul,
Minn., 1965). See also Hill v. Norton, 74 W.Va. 428,
82 S.E. 363 (1914) (lessor responsible after end of
term for sidewalk defect created during term even
though lessee renewed with defect in existence.)
167. Tankersley v. Peabody Coal Co., 31 I11.2d 496, 202
N.E.2d 498 (1964), quoting Buis v. Peabody Coal Co.,
41 111. App.2d 317, 190 N.E.2d 507, 510 (1963)
(involving the same situation). Cf. O'Dell v.
McKenzie, 150 W.Va. 346, 145 S.E.2d 388 (1965),
discussed in the accompanying note 162. The defen-
dant there was a lessor whose lessee had already
abandoned the property, but the court did not rest
liability on this fact.
168. RESTATEMENT OF TORTS, supra note 151, sec.820(g);
Noonan v. Pardee, 200 Pa. 474, 50 A. 255 (1901)
(relying on the statute of limitations, held to
run from the time support was removed rather than
the time injury occurred).
169. ACID MINE DRAINAGE IN APPALACHIA, supra note 41,
at 6-7.
170. Ibid.
171. For an economist's view of the effectiveness of
litigation as a resource allocation tool, see A.
Kneese & B. Bower, MANAGING WATER QUALITY:
ECONOMICS, TECHNOLOGY, INSTITUTIONS 84-88 (The
Johns Hopkins Press, Baltimore, 1968).
172. For a general discussion, see N. Hines, NOR ANY DROP
TO DRINK: PUBLIC REGULATION OF WATER QUALITY, Part I,
State Pollution Control Programs, 52 Iowa L.Rev.
186 (1966) .
173. Md. Ann. Code art. 96A, sees.24,26 (Supp.1971) (see
222
-------
also, sec.106); Ohio Rev. Code Ann. sees.6111.01, 6111.04
(Page Supp. 1970); Pa. Stat. Ann. tit. 35, sees.691.11,
691.301, 691.315 (Supp. 1971); W.Va. Code Ann.
secs.20-5A-2, 20-5A-5 (1970).
174. Act No. 394, sec.310, (1937) Pa. Laws 1987.
195. Act No. 177, sec.6, (1945) Pa. Laws 435.
176. See Sanitary Water Board v. Eckert, 71 Dauph. 288
(1959); Commonwealth ex rel Chidsey v. Black, 363
Pa. 231, 69 A.2d 376 (1949).
177. Act No. 194, sec.2,(1965) Pa. Laws 372.
178. Pa. Stat. Ann. tit. 35, sec.691.315(a) (Supp.1971).
179. Pa. Stat. Ann. tit. 71, sec.510-1 (Supp.1971).
180. Pa. Stat. Ann. titl 35, sec.691.315(a) (Supp.1971);
see also sec.691.601 et seg.
181. Sanitary Water Board v. Sunbeam Coal Corp., 91
Dauph. 70, 47 Pa. D. & C.2d 378 (1969).
182. Pa. Stat. Ann. tit. 35, sec.691.315(b) (Supp.1971).
183. Pa. Stat. Ann. tit. 35, sec.691.316 (Supp.1971).
184. Pa. Stat. Ann. tit. 35, sec.691.605 (Supp.1971).
185. Pa. Stat. Ann. tit. 35, sec.691.602 (Supp. 1971).
186. See Commonwealth ex rel County of Allegheny v. Toth,
189 Pa. Super. 552, 152 A.2d 284 (1959).
187. Md. Ann. Code art.96A, sec.26 (Supp. 1971); Ohio
Rev. Code Ann. sec.6111.04 (Supp. 1970) .
188. W.Va. Code Ann. Sec.20-5A-5(a) (1970).
189. W.Va. Code Ann. sec.20-5A-5(a) (2) (1970) .
190. 51 Op. Att'y. Gen. (Md.) 164, 166 (1966).
223
-------
191. Pa. Stat. Ann. tit. 32, sec.5116(a)(1)(II)(Supp.1971)
192. Pa. Stat. Ann. tit. 35, sec.691.8(b) (Supp. 1971).
193. Pa. Stat. Ann. tit. 52, sec.30.51 et seq. (Supp.1971)
194. Ch. 84, (1939) W.Va. Acts 402.
195. Ch. 16, (1947) Md. Laws, Ext. Sess.53; 122 Ohio Laws
730 (1947).
196. Maryland Coal and Realty Co. v. Bureau of Mines,
193 Md. 627, 69 A.2d 471 (1949).
197. Ch. 635, (1955) Md. Laws 1042.
198. Act No. 418, (1945) Pa. Laws 1198. Anthracite
surface mining came under regulation in 1947; Pa.
Stat. Ann. tit. 52, sec.681.1 et seq. (1966). A
1941 statute, still on the books, is directed at
the safety of miners in all "coal stripping"
operations; Pa. Stat. Ann. tit. 52, sees.1471-
1476 (1966).
199. Act No. 529, (1949) Pa. Laws 1730; Act No. 377,
(1953) Pa. Laws 1175; Act No. 521, (1956) Pa.
Laws 1562; (1961) Pa. Laws 1210.
200. Act No. 133, (1963) Pa. Laws 239. The present law
is codified as Pa. Stat. Ann. tit. 52, sec.1396.1
et seq. (1966 and Supp. 1971).
201. Pa. Stat. Ann. tit. 71, sec.510-1(5) (Supp. 1971).
202. W.Va. Code Ann. sec.20-6-16 (Advance copy 1971).
203. W.Va. Code Ann. sec.20-6-11 (Advance copy 1971).
204. W.Va. Code Ann. sec.26-6-11 (1970).
205. Md. Ann. Code art.66C, sees.548,574(b) (1970).
206. Md. Ann. Code art.66C, sec.665(d) (1970).
2 24
-------
207. W.Va. Code Ann. sec.22-2-6 (1970).
208. Ohio Rev. Code Ann. sec.4153.40 (Page 1965).
209. Pa. Stat. Ann. tit. 52, sec.28.2 (Supp.1971).
210. Pa. Stat. Ann. tit. 52, sees.681.3,1396.3 (1966).
211. See W.Va. Code Ann. sec.20-6-12 (1970).
212. See Chapter -IV of this study.
213. Pa. Stat.Ann. tit. 52, sec.28.5 (1966).
214. Pa. Stat.Ann. tit. 52, sec.28.7 (1966).
215. W.Va. Code Ann. sec.27-2-73 (1970).
216. W.Va. Code Ann. sec.20-5A-5(b) (1970).
217. Pa. Stat. Ann. tit. 52, sec.1406.1 et seq. (Supp.1971)
218. Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922) ,
invalidating Pa. Stat. Ann., tit. 52, sec.661-670
(1966) dealing with subsidence over anthracite mines.
The most recent anthracite subsidence statute is
Pa. Stat. Ann. tit. 52, sec.672.1-672.10 (1966),
adopted in 1961.
219. Pa. Stat. Ann. tit. 52, sees.1406.4-1406.6, 1406.10,
1406.15 (Supp. 1971).
220. Pa. Stat. Ann. tit. 52, sec.3201 et seq. (1966).
221. Pa. Stat. Ann. tit. 32, sec.5116(a)(1) (Supp.1971).
Contributions to Pennsylvania of Federal funds on
a matching basis "to fill voids in abandoned coal
mines," inter alia, is authorized by 30.U.S.C.
sec.571 (1970) .
222. Pa. Stat. Ann. tit. 52, sec.30.203 (Supp. 1971).
Cf. Pa. Stat. Ann. tit. 32, sec.5116(a)(1) (Supp.1971)
which authorizes similar entry "pending the acqui-
sition" of property required to combat air or water
pollution, mine fires or subsidence.
225
-------
223. 33 U.S.C. sec.1164(1970); 40 U.S.C. App.sees.205,302
(1970); 30 U.S.C. sees.551 et seq.,571 et seq. (1970).
224. Pa. Stat. Ann. tit. 32, sec.5101 et seq. (Supp.
1971). See Pa. Dep't. of Environmental Resources,
BOND ISSUE REPORT FOR MONTH ENDING JUNE, 1971
(Harrisburg, 1971); also ABATEMENT OF POLLUTION
FROM ABANDONED MINES IN PENNSYLVANIA, supra note 73.
225. Md. Ann. Code art. 66C, sec.674A et seq. (1970).
226. Hearings on Surface Mining Reclamation, supra note
79, at 67.
227. Md. Code Ann. art. 66C, sec.660 (1970), and art.96A,
sec.106 (Supp. 1971).
228. See Goldblatt v. Town of Hempstead, 369 U.S. 590
(1962); Interim Zoning Ordinance, Garrett County,
Maryland (May 10, 1971).
229. East Fairfield Coal Co. v. Miller, 71 Ohio L. Abs.
490, 505-506 (C.P. 1955); cf. East Fairfield Coal
Co. v. Booth, 166 Ohio St. 379, 143 N.E.2d. 390 (1957)
230. W.Va. Code Ann. sec.20-6A-l (Advance copy 1971).
231. See Act of July 11, 1940, ch. 581, 54 Stat. 752.
232. Pub. L. 91-575, 84 Stat. 1509 (1970).
233. See E. Cleary, THE ORSANCO STORY 167 et seq.(The
Johns Hopkins Press, Baltimore, 1967); ORSANCO
Resolution No. 5-60, January 14, 1960, as amended,
January 10, 1963; ORSANCO Pollution Control Standard
No. 1-70, adopted November 13, 1970.
234. Act of July 11, 1940, ch. 579, 54 Stat. 748, as
amended, Pub. L. 91-407, 84 Stat. 856 (1970).
235. See Pa. Stat. Ann. tit. 52, sec.3252 et seq.
(Supp. 1971).
236. Dakota Central Telephone Co. v. South Dakota, 250
U.S. 163, 186 (1919).
226
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237. AESTHETICS AS A ZONING CONSIDERATION, 13 Hast.
L.J. 374 (1962).
238. License Cases, 46 U.S. (5 How.) 504,583 (1847).
239. Berman v. Parker, 348 U.S. 26, 32 (1954).
240. See statutes cited supra note 173 and: Md. Dep't. of
Water Resources, Water Resources Regulation 4.8
(1969); Pa. Sanitary Water Board Rules and Regulations
(1970); Water Quality Standards adopted by the Water
Pollution Control Board of Ohio (1970); W.Va. Water
Resources Boards Administrative Regulations for
Water Quality Criteria on Inter and Intra State
Streams (1970) .
241. H.R. 4556, 92d Cong., 1st Sess. (1971).
242. Md. Bureau of Mines, Reg. No. 1, sec.l.lO(b)(3)
(1970); W.Va. Code Ann., sec.20-6-13 (Advance Copy
1971) .
243. 33 U.S.C. sec.1160 (1970).
244. Exec. Order No. 11574 (1970).
245. 33 U.S.C. 401 et seq. (1970).
246. 2 E.R.C. 1135 (Dist Ct. Minn. 1970).
247. Ibid. at 1140.
248. H.R. 4556, 92d Cong., 1st Sess. (1971).
249. A. Dunham, GRIGGS v. ALLEGHENY COUNTY IN PERSPECTIVE:
THIRTY YEARS OF SUPREME COURT EXPROPRIATION LAW,
1962 Sup. Ct. Rev. 63.
250. 123 U.S. 623 (1887).
251. 260 U.S. 393 (1922).
252. Midland Electric Coal Corp. v. Knox County, 1 Ill.2d
200, 115 N.E.2d 275, 283 (1953).
227
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253. Frankel V. Baltimore, 233 Md. 94, 162 A.2d 447 (1959).
254. 204 Md. 523, 105 A.2d 482, 487 (1953).
255. Consolidated Rock Products Co. v. City of Los Angeles,
57 Cal.2d 515, 370 P.2d 342 (1962), appeal dismissed,
371 U.S. 36 (1962). Candlestick Properties, Inc. v.
San Francisco Bay Conservation and Development Comm.,
11 Cal. App.3d. 557, 89 Cal.Rptr. 897 (1970).
256. See, e.g., Justice Brandeis' dissent in Pennsylvania
Coal Co. v. Mahon, 260 U.S. 393, 416 (1922).
257. See Midland Electric Coal Co. v. Knox County,
1 Ill.2d 200, 115 N.E.2d 275 (1953); East Fairfield
Coal Co. v. Booth, 166 Ohio St. 379, 143 N.E.2d 309
(1957).
258. Bells' Gap R.R.Co. v. Pennsylvania, 134 U.S. 232,
237 (1890).
259. Watson v. State Comptroller, 254 U.S. 122, 124
(1920).
260. 184 U.S. 540, 562 (1902).
261. Pa. Const, art. VIII, sec.l.
262. Dufour v. Maize, 358 Pa. 309, 56 A.2d 675, 680 (1948).
263. ACID MINE DRAINAGE IN APPALACHIA, supra note 41,
at XXIV.
264. Ibid, at 49-50.
265. Pa. Stat. Ann. tit. 32, sec.5101 et seq. (Supp. 1971).
266. Md. Ann. Code art. 66C, sec.674A et seq. (1970).
267. J. Heins, CONSTITUTIONAL RESTRICTIONS AGAINST
STATE DEBT 3-7 (The University of Wisconsin Press,
Madison, 1963).
268. Ohio Const, art. VIII; Pa. Const, art. IX, sec.4;
W.Va. Const, art. X,sec.4; Md. Const, art. Ill,sec.34.
228
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269. Kasch v. Miller, 104 Ohio St. 281, 135 N.E. 813
(1922); Bates v. State Bridge Comm. 109 W.Va. 186,
153 S.E. 305 (1930) .
270. Wyatt v. State Roads Comm., 175 Md. 258,1 A.2d 619
(1938).
271. Kelley v. Earle, 325 Pa. 337, 190 A. 140 (1937).
272. Md. Ann. Code.art. 66C, sec.674C (1970).
273. Pa. Const, art. VIII, sec.16.
274. R. Stephan and W. Lorenz, SURVEY OF COSTS ON METHODS
FOR CONTROL OF ACID MINE DRAINAGE POLLUTION 24, 28
(U.S. Dep't. of Interior, Bureau of Mines; Pittsburgh,
1968). This study is Attachment E to U.S. Army Corps
of Engineers, supra note 42.
275. ACID MINE DRAINAGE IN APPALACHIA, supra note 41,
at 6.
276. R. Stephan and W. Lorenz, supra note 274, at 20.
277. Winous Point Shooting v. Caspersen, 193 U.S. 189,
191 (1904); Fallbrook Irrigation District v. Bradley,
164 U.S. 112, 158 (1896); Thorington v. Montgomery,
147 U.S. 490, 492 (1893).
278. O'Neil v. Learner, 239 U.S. 244, 249 (1915); Fallbrook
Irrigation District v. Bradley, 164 U.S. 112, 158
(1896); Missouri Pacific Railway v. Nebraska, 164
U.S. 403, 417 (1896) .
279. 2A J. Sackman, NICHOLS ON EMINENT DOMAIN, sec.7.2(1)
(Mathew Bender, New York, rev. 3d ed. 1970).
280. Ibid, at sec.7.2(2).
281. 164 U.S. 112 (1896).
282. 348 U.S. 26 (1954) .
283. Md. Const, art.III,sec.40; Pa. Const, art. i, sec.10;
Ohio Const, art. I , sec.19; W.Va. Const, art,III,sec.9,
229
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284. Md. Const, art.Ill, sec.40.
285. Arnsperger v. Crawford, 101 Md. 247, 251, 61 A. 413
(1905); Riden v. Philadelphia, B & W. R.R. Co.,
182 Md. 336, 340, 35 A.2d 99 (1943).
286. American Telephone & Telegraph Co. v. Smith,
71 Md. 535, 18 A. 910, 914 (1889).
287. Riden v. Philadelphia, B & W R.R. Co., 182 Md. 336,
342, 35 A.2d 99 (1943).
288. Md. Const, art. XIB.
289. Master Royalties Corp. v. Mayor & City Council of
Baltimore, 235 Md. 74, 200 A.2d 652 (1964).
290. Ibid., 200 A.2d at 657.
291. Ohio Const, art. I, sec.19.
292. O'Neil v. Board of County Com'rs of Summit County,
3 Ohio St. 2d 53, 209 N.E.2d 393, 397 (1965); State
v. City of Cleveland, 4 Ohio App. 2d 57, 211 N.E.2d
203, 208 (1965).
293. 104 Ohio St. 447, 135 N.E. 635 at 638 (1922).
294. 159 Ohio St. 13, 110 N.E.2d 778 (1953).
295. Ibid., 110 N.E.2d at 786.
296. Pa. Const, art. I, sec.10.
297. Ormsby Land Co. v. City of Pittsburgh, 276 Pa. 68,
119 A.730 (1923); Pennsylvania Mut. Life Ins. Co.
v. City of Philadelphia, 242 Pa. 47, 88 A. 904, 906
(1913) .
298. 242 Pa. 47, 88 A. 904 (1913).
299. Ibid., 88 A. at 907.
300. Belovsky v. Redevelopment Authority, 357 Pa. 329,
54 A.2d 277, 382-383 (1947).
230
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301. Basehore v. Hampden Industrial Development Auth.,
433 Pa. 40, 248 A.2d 212, 217 (1968).
320. 21 W.Va. 534 (1883).
303. 62 W.Va. 270, 57 S.E. 808, 810 (1907).
304. Caretta Ry. Co. v. Virginia-Pocohontas Coal Co.,
62 W.Va. 185, 57 S.E. 401 (1907).
305. W.Va. Code Ann.sees.16-18-26, 16-18-27 (1966).
306. Md. Const, art. Ill, sec.34; Ohio Const, art.VIII,
sec.3.
307. Md. Const, art. Ill, sec.34, Ohio Const, art XII,
sec.6.
308. Pa. Const, art. IX, sec. 12.
309. W.Va. Const, art X, sec.4.
310. Md. Industrial Development Financing Auth. v.
Meadow-croft, 243 Md. 515, 221 A.2d 632 (1966).
311. Basehore v. Hampden Industrial Development Auth.
433 Pa. 40, 248 A.2d 212 (1968).
312. Kasch v. Miller, 104 Ohio St. 281, 135 N.E. 813
(1922); Bates v. State Bridge Comm., 109 W.Va. 186,
153 S.E. 305 (1930).
313. Ohio Const, art XII, sec.6.
314. Ohio Const, art VIII, sec.13.
315. Md. Const, art. Ill, sec.34.
316. Bonsai v. Yellott, 100 Md. 481, 60 A. 593 (1905).
317. Welch v. Coglan, 126 Md. 1, 94 A. 384 (1915).
318. Wyatt v. State Roads Comm., 175 Md. 258, 1 A.2d
619 (1938).
231
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319. Johns Hopkins Univ. v. Williams, 199 Md. 382, 86
A.2d 892 (1952).
320. Melvin v. Anne Arundel County, 199 Md. 402, 86 A.2d
902 (1952).
321. Bonsai v. Yellott, 100 Md. 481, 505, 60 A. 593
(1905).
322. See J. Heins, supra note 267, at 13-18.
323. 33 U.S.C. sec.H64(c) (2) (1970).
324. See 1 Environment Reporter, Current Developments
1212-1213 (1970).
325. Ibid., at 198-99.
326. ACID MINE DRAINAGE IN APPALACHIA, supra note 41,
at 36.
327. Environmental Action, September 18, 1971, at 3.
328. Wall Street Journal, May 24, 1971, at 1.
329. Newsweek, June 28, 1971, at 70.
330. See 1 Environment Reporter, Current Developments
14577 (1970).
331. Federal Water Pollution Control Administration,
Ohio Basin Region, STREAM POLLUTION BY COAL MINE
DRAINAGE IN APPALACHIA 95 (Cincinnati, rev. 1969) .
This study is Attachment A to U.S. Army Corps of
Engineers, supra note 42.
332. ANNUAL REPORT OF THE MARYLAND BUREAU OF MINES 1970
at 10 (Bureau of Mines, Westernport, Md.).
333. MINERALS YEARBOOK, supra note 44, for each year in
the period mentioned.
334. ANNUAL REPORT OF THE MARYLAND BUREAU OF MINES for
each year in the period 1961-1970 (Bureau of Mines,
Westernport, Md.)
232
-------
335. Ibid.
336. Md. Dep't. of Economic and Community Development,
MARYLAND ECONOMIC DEVELOPMENT MEMO, vol. 8, no. 2
(June, 1971), p. 3. U.S. Bureau of the Census,
COUNTY BUSINESS PATTERNS, 1969 Maryland CBP-69-22,
pp. 18 and 42 (1970); ANNUAL REPORT OF THE MARYLAND
BUREAU OF MINES 1970, supra note 332, at 10.
337. MINERALS YEARBOOK, supra note 44, for each year
in the period mentioned.
338. U.S. Office of Business Economics, SURVEY OF CURRENT
BUSINESS, vol. 51, at 5-35 (1971).
339. See U.S. Bureau of the Census, CENSUS OF MINERAL
INDUSTRIES 1967, Industry Series: Bituminous Coal
and Lignite Mining, MIC 67(1)-12A (1970), and Area
Series: Maryland, Delaware and District of Columbia
MIC 67 (2)-19 (1971).
340. For more on escalation, see L. Hauser, THE EFFECT
OF ESCALATION ON FUTURE FUEL COSTS, 87 Pub. Util.
Fort. no. 12, at 68-70 (June 10, 1971).
341. D. Brooks, STRIP MINE RECLAMATION AND ECONOMIC
ANALYSIS, 6 Nat. Res. J. 13, 17 (1966).
342. Interview with Kenneth N. Weaver, Director of the
Maryland Geological Survey and chairman of the Land
Reclamation Committee; see also, the views expressed
in an article in the Baltimore Evening Sun, August
8, 1971, at p. Cl.
343. Federal Water Pollution Control Administration,
supra note 331, at 96.
344. Appendix B, ENGINEERING ECONOMIC STUDY, supra note 67,
at 140. (Figures adjusted to account for inflation
at 5% annually.)
345. U.S. Bureau of the Census, supra note 339.
233
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GLOSSARY OF LEGAL TERMS
ABANDONMENT - the voluntary giving up of property or rights,
ACCESSION - principle whereby an owner of property becomes
entitled to something which is added or united
to it.
ASSESSMENT - imposition of pecuniary payment upon person
or property.
CONDEMNATION - process through which property of a private
owner is expropriated by a governmental
agency, without the private owners consent,
but upon payment of compensation.
CONVEYANCE - transfer of land from one person to another.
DEED - a written instrument conveying real property.
EASEMENT - a right of one person to use the land of
another for some special purpose.
EMINENT DOMAIN - condemnation.
ESTATE - the interest which a person has in property.
FEE SIMPLE DETERMINABLE - a fee simple estate which will
terminate on the occurrence of
a specified condition.
FEE SIMPLE ESTATE - the most extensive interest a man can
have in land.
LICENSE - permission of one person to go or act on land
of another.
LIEN - a charge of incumbrance.
LIMITATION - the time at the end of which no legal action
can be maintained.
NEGLIGENCE - legal doctrine imposing civil responsibility
upon a finding that a man failed to exercise
235
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reasonable care under the circumstances.
NUISANCE - unlawful conduct which annoys and disturbs
another in possession of his property.
PERSONAL PROPERTY - generally everything that is subject
of ownership not coming under the
denomination of real property, includ-
ing commodities.
POLICE POWER - regulatory power which inheres in state
government.
POSSIBILITY OF REVERTER - the right to obtain property
upon the occurrence of the
condition which terminates a
fee simple determinable estate.
PROFIT - a right of one man to excavate soil or minerals
owned by another.
REAL PROPERTY - land, and generally whatever is erected
upon or affixed to land.
RECORDING - process through which the public is given
notice of conveyance of, and the imposition
of liens on, real property.
RIPARIAN RIGHTS - the rights of owners of lands abutting
on the banks of streams.
ROYALTY - a payment reserved by the grantor of a lease
on a mine or similar right, and payable pro-
portionally to the amount of mineral extracted
by the grantee.
WAIVER - legal doctrine which extinguishes rights upon a
finding that the holder has intentionally
relinquished them.
ZONING - land use control prescribing the use to which
various designated districts may be put.
236
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SELECTED WATER
RESOURCES ABSTRACTS
INPUT TRANSACTION FORM
1. Report No.
4. Title
LEGAL PROBLEMS OF COAL MINE RECLAMATION
7. Authoi(s)
Goldberg, E.F. ,?.nd Power, G.
9. Organization
Maryland University, Baltimore, Md.,
School of Law
12. Sponsoring Organization
15. Supplementary ffotes
3. Accession No.
w
5. Report Date
6.
8. Performing Organization
Report No.
10. Project No.
11. Contract/Grant No.
Grant # 14010 FZU
13. Type of Report and
Period Covered
16. Abstract Coal mining produces a variety of environmental problems —
acid drainage/ sedimentation, surface subsidence and surface scars.
This study reviews the response of legal institutions to these prob-
lems in Maryland, Ohio, Pennsylvania and West Virginia. Technologi-
cal and economic concerns are also taken into account.
The study discusses the antecedents of today's Appalachian
coal industry and the environmental problems it has created. It
examines the way in which the property system allocates rights in
coal and coal lands, the efficacy of litigation and present laws and
regulations for preventing environmental damage, and constitutional
limitations on the ability of states to effectively respond to the
problems. A case study of the economics of the Maryland coal indus-
try is also presented. Model legislation giving the states the
necessary powers to respond to environmental problems, is proposed.
i7a.Descriptors *Coal mine wastes, *Reclamation, *Legal aspects. Acid
mine waters, Land subsidence, Sediments, Strip mines. Underground,
Mining Administrative decisions, Eminent domain, Interstate compacts,
Judicial decisions, Permits, Riparian rights. Third party effects.
Water law, Water rights
17b. Identifiers
*Maryland, *Ohio, *Pennsylvania, *West Virginia
17c. COWRR Field & Group 06E
18. Availability
19. Security Class.
(Report)
20. Security Class.
(Page)
Abstractor
21. No. of
Pages
22. Price
Institution
Send To:
WATER RESOURCES SCIENTIFIC INFORMATION CENTER
U.S. DEPARTMENT OF THE INTERIOR
WASHINGTON. D. C. 20240
WRSIC 102(REV. JUNE 1971)
«U.S. GOVERNMENT PRINTING OFFICE: 1972-484-483/92 1-3
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