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

-------
 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

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          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

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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

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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

-------
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.

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                  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
                            27

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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.
                            28

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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.
                            29

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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
                            30

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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.
                            31

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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.
                            32

-------
          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.
                            33

-------
           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.
                            34

-------
          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
                            35

-------
 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
                            36

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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
                            37

-------
 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
                            38

-------
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
                            39

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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
                           40

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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.
                            41

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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,
                            42

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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
                            43

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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
                           44

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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.
                            45

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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
                            46

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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
                            47

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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.
                           51

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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.
                          52

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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.
                            55

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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
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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
                            60

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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
                            63

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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."

-------
                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
                            66

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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
                            67

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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.
                            68

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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
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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.
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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
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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
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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
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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-
                            89

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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.
                            90

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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.

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 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
                            92

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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.
                            94

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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.
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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.
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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^
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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
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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
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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
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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
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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:"
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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
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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
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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-
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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-
                           130

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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,
                          136

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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,
                         137

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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
                           138

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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
                           139

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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.
                          142

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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

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 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.
                          144

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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

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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.
                          146

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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
                           148

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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
                        149

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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.
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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
                           154

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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.
                            155

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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
                                      156

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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
                          157

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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.
                           158

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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
                          159

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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).
                           160

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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
                           163

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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)
                           164

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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-
                          165

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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
                           166

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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;
                           168

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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.
                           169

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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
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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 .
                          171

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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
                           172

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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
                          200

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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
                          201

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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
                           202

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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
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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

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 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

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 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

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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

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 (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

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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

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      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

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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

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 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

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     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

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 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

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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

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 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

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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

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 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

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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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