By Peter Fontaine, co-chair, Energy, Environment and Public Utility Practice,
Pennsylvania’s 200-year history of coal mining has left a legacy of polluted waterways that remains one of the commonwealth’s greatest environmental challenges. More than 250,000 abandoned surface mines, many containing acidic-water-filled pits, scar Pennsylvania’s landscape.
Acidic drainage from these abandoned mines—called “acid mine drainage” or AMD—often has a pH below 5.0, which leaches heavy metals from surrounding rocks and kills fish and other aquatic species in its path. AMD from historic coal mining has rendered more than 2,400 miles of Pennsylvania’s streams and waterways unusable and contaminated untold numbers of household drinking water wells.
While Pennsylvania spends about $19 million annually on abandoned mine reclamation, this modest effort is dwarfed by the magnitude of the environmental problem, which some estimate will cost $50 billion to fix.
To date, relatively few AMD areas have been remediated, because of cost, potential liability, and a lack of meaningful economic incentives. The Marcellus Shale presents an exciting win-win opportunity for the state and drillers to work together while addressing Pennsylvania’s most intractable environmental problem.
Because many current and future Marcellus Shale wells are in close proximity to AMD areas there is an unique opportunity to beneficially use these acid waters for hydraulic fracturing and thereby to help abate AMD areas. If the right mix of legal and economic incentives can be engrafted on the current regulatory program, the Marcellus Shale could represent not just an opportunity to secure a dependable supply of cleaner-burning fuel but also the promise of lasting improvement to Pennsylvania’s streams and rivers.
In many areas of Pennsylvania, sufficient quantities of suitable water for hydro-fracing is lacking due to stream flow limitations and other regulatory restrictions. AMD water is a potential source of frac water if it can be treated to reduce suspended solids and other compounds that can block the horizontal fractures that are essential to the economic recovery of natural gas. 
The suitability of AMD as a source of frac water already is demonstrated in the field with several Marcellus Shale wells using impaired mine drainage waters for frac water. However, bold new legislation is needed to protect drillers and provide incentives to use AMD water.
Existing laws do not provide enough protection against liability under the Clean Streams Law. Also, because Pennsylvania is one of only a few states that do not charge a fee for natural gas extraction, there is no stable funding source to encourage AMD abatement projects in conjunction with natural gas extraction.
For these reasons, legislation is needed to:
(1) strengthen liability protection under the Clean Streams Law for drillers who reuse AMD, similar to the “Release of Liability/Covenant Not-To-Sue” given to redevelopers of Pennsylvania Brownfield sites;