SMCRA
The Surface Mining Control and Reclamation Act (SMCRA) was passed in 1977 to regulate all types of surface mining, including Mountaintop Removal. It may come as a surprise to some, that Mountaintop Removal Mining is not prohibited by SMCRA but is rather encouraged as a means of economic growth.[1] The next few posts will discuss the parts of this law that apply to MTR.
Approximate Contour Requirement (AOC)
Lands disturbed by mining must be reclaimed to their approximate original contour. SMCRA creates limited exceptions to this requirement for mountaintop removal, but operators wishing to take advantage of one of these exceptions must render the mined lands capable of one of several enumerated post mining land uses. It should only be allowed in situations where beneficial post mining land uses could compensate for the adverse effects of not returning the land to AOC, such as the greater number and size of the excess spoil fills generated by mountaintop removal. The Office of Surface Mining’s alternative post mining land use regulations impose a higher and better use reclamation standard on MTR. A post mining land use cannot be approved where the use could be achieved without the waiving of the AOC requirement, except in those rare instances where it is demonstrated that a significant public or economic benefit will be realized there from; and the post mining land use must always offer a net benefit to the public or the economy. (Enforcement, Exceptions to Approximate Original Contour Requirements for Mountaintop Removal Operations and Steep Slope Mining Operations, 1999)
So, in other words, if the reclaimed land has a better use (according to what SMCRA considers better) than the existing use prior to mining then an AOC waiver[2] will be granted to the mine operator. The Office of Surface Mining has a list of specific uses constituting better usage. They are industrial, commercial, agricultural, residential, and public facility.
“[Industrial use includes] heavy and light manufacturing facilities, production of materials for fabrication and storage of products.” (Enforcement, Exceptions to Approximate Original Contour Requirements for Mountaintop Removal Operations and Steep Slope Mining Operations, 1999) This is considered a benefit because the writers of SMCRA believed it would create local job opportunities and stimulate the economy.
“[Commercial use includes] retail or trade of goods or services, including hotels, motels, stores, restaurants, and other commercial establishments.” (Enforcement, Exceptions to Approximate Original Contour Requirements for Mountaintop Removal Operations and Steep Slope Mining Operations, 1999)This type of use provides a service to residents and increases the potential for tourism.[3]
Agricultural use is considered beneficial with forestry topping the list.[4] OSM regulations state that low-intensity, low-maintenance agricultural activities, such as grazing and pastureland are discouraged but that is often exactly what is done during reclamation. Some states are now beginning to use a different approach with less compaction, enabling replanted trees to flourish on past mining sites.[5] These techniques show a great deal of promise.
“[Residential use includes] land used for single- and multiple-family housing, mobile home parks, or other residential lodgings. “ (Enforcement, Exceptions to Approximate Original Contour Requirements for Mountaintop Removal Operations and Steep Slope Mining Operations, 1999) This use provides needed housing to residents in the area, thus making it a better use according to SMCRA.
Public facility is the final approved use of reclaimed land. Interestingly, fish and wildlife habitat cannot be approved as a beneficial use in and of itself, even though that was most likely the pre-mining function. Fish and wildlife habitat is only considered better use if it is an integral part in the plan of a public facility. “Public facility use may include schools, hospitals, airports, reservoirs, museums, and developed recreational sites such as picnic areas, campgrounds, ball fields, tennis courts, fishing ponds, equestrian and off-road vehicle trails, and amusement areas together with any necessary supporting infrastructure such as parking lots, and rest facilities.” (Enforcement, Exceptions to Approximate Original Contour Requirements for Mountaintop Removal Operations and Steep Slope Mining Operations, 1999)
[1] Some believe the creation of flat land in mountainous areas makes good economic sense. Others, who vehemently oppose the practice, disagree to say the least. MTR has become a hot issue to be discussed with care.
[2] An AOC waiver or variance grants permission to the mining operator to use an alternate reclamation plan other than approximate original contour as specified in SMCRA.
[3] Some locals would argue that the mountains are what the tourists come to see.
[4] Ideally all reclaimed sites would be planted with trees, but SMCRA regulations require compaction of the soil to prevent erosion. Trees have great difficulty growing in this type of environment.
[5] Appalachian Regional Restoration Initiative, http://arri.osmre.gov.
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