MTR Part III-Stream Buffer Zone Rule

Stream Buffer Zone Rule (SBZ)

Existing Buffer Zone Rule 30 CFR § 816.57

§ 816.57 Hydrologic balance: Stream buffer zones.

(a) No land within 100 feet of a perennial stream or an intermittent stream shall be disturbed by surface mining activities, unless the regulatory authority specifically authorizes surface mining activities closer to, or through, such a stream. The regulatory authority may authorize such activities only upon finding that—

(1) Surface mining activities will not cause or contribute to the violation of applicable State or Federal water quality standards, and will not adversely affect the water quantity and quality or other environmental resources of the stream; and

(2) If there will be a temporary or permanent stream-channel diversion, it will comply with Sec. 816.43.

(b) The area not to be disturbed shall be designated as a buffer zone, and the operator shall mark it as specified in Sec. 816.11.

[48 FR 30327, June 30, 1983] (Mountains, 2007)

OSM is not authorized to prohibit Mountaintop Removal Activities under SMCRA. All rules are extracted from SMCRA guidelines during rulemaking.[1] The Stream Buffer Zone Rule applies to mining activities in or around intermittent[2] and perennial streams.[3] There is much controversy regarding this rule and what proposed changes will mean.

The following is representative of environmental group’s interpretation of the SBZ rule: “The Stream Buffer Zone Rule prohibits coal-mining activities from disrupting areas within 100 feet of streams unless those activities in no way impact water quality or quantity.” (Lyric, 2007) But upon closer study, I find that OSM interprets the law as prohibiting activities that adversely impact water quantity or quality. In their reasoning, the law provides for a variance when in their estimation, the proposed activity will not cause significant damage. I think the misunderstanding stems from the use of the phrase, “will not adversely affect the water quantity and quality…..” (Mountains, 2007) A literal interpretation of this statement would lead one to believe that the activities in question are completely prohibited when in fact the actual wording in SMCRA uses the phrase, “minimize adverse impacts….” (Enforcement, Environmental Impact Statement, 2007) OSM is charged with balancing the nation’s need for energy with environmental concerns. Therefore, they will not and cannot, completely prohibit any mining activities allowed by SMCRA, but rather they can only regulate them to the extent allowed by law. “A Stream Buffer Zone is not required by the Surface Mining Control and Reclamation Act of 1977 (SMCRA). OSM created the existing Stream Buffer Zone rule as a framework for making sure this standard is met. While the law (SMCRA) does not prohibit most mining activities within and around streams, OSM and States have used the Stream Buffer Zone rule to require mine operators to take additional precautions within that zone.” (Owens, 2007)

---

[1] Rulemaking is the process by which OSM interprets the law into practicable actions.

[2] Refers to a stream that only flows for part of the year

[3]Refers to a stream that flows year round

Mountain top removal Part II: SMCRA and the AOC requirement

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.

Mountain Top Removal-Part I

In this series of articles, I will explain what MTR is, talk about the laws that govern it and the controversy surrounding the practice.

Mountaintop Removal Mining
What is mountaintop removal mining (MTR)? What justifications are given to support this practice? How does MTR affect watersheds and the landscape? For anyone not familiar with the practice of mountaintop removal mining, these questions may come to mind. For anyone who lives near an MTR mine site, the answers are well-known.

Mountaintop removal is a common form of surface mining that has been in use since the 1970’s. Basically, mountaintops are quite literally blown off using generous amounts of explosives. The purpose being to extract entire coal seams as much as 1000ft below the peak. This type of mining is popular with coal companies because they get more bang for the buck. Mining jobs are all but eliminated and replaced by a huge piece of equipment called a dragline, which can cost upwards of $100million. MTR is simply an efficient and profitable way to recover energy from the earth.

This particular form of mining, while providing necessary energy, can be particularly intrusive to the surrounding area, often causing drinking water contamination, increased erosion, flooding and sedimentation[1], damage to home foundations[2] and some serious noise pollution[3]. Communities in the vicinity of mountaintop removal sites tend to suffer from decreased home values and depressed quality of life. Those who choose to leave may have trouble finding a buyer willing put up with the same conditions they themselves are trying to escape.

Personally, I don’t agree with the practice. A big problem I and others have with mountaintop removal, besides the complete destruction of a mountain, is the way the mining byproducts are handled. MTR operations are usually granted an AOC variance[4] creating excess spoil[5] which is disposed of in valley fills.[6] Coal slurry[7] impoundments are held in place by sludge dams constructed from excess spoil which can be unstable and prone to leakage.

For more information, here is an article from Earth Observatory: http://earthobservatory.nasa.gov/Study/MountaintopRemoval/

[1] To facilitate MTR mining, the area is first clear-cut, exposing bare soil to the elements.
[2] Blasting is so strong it is often felt in nearby communities, causing structural damage to homes. [3] MTR operations can work 24 hours a day as close as 300ft to residential areas.
[4]
SMCRA requires mine sites to be reclaimed to Approximate Original Contour. Basically this means they must leave the site looking about the same as it did before it was mined. A variance or waiver can be granted if the proposed reclamation meets certain conditions. When a variance is granted, excess spoil is created because not all of the overburden is returned to the site.
[5] In surface mining, soil and rock overburden must be fractured and removed. These broken pieces of rock are referred to as spoil. Since the fractured rock has more volume than when it was undisturbed, the volume becomes greater. [6] A valley fill is the disposal of excess spoil by pushing it into the adjacent valley, burying headwaters streams and aquatic habitat. [7] Coal slurry is the left over wash water used to process coal in preparation for distribution. The water is usually contaminated with pollutants such as mercury and arsenic which are toxic to aquatic life and harmful to humans as well.

Skate Park Here We Come!!

A really great project in Appalachia, VA will benefit area teens and give them a place to hang.

See article at http://www.inrich.com/cva/ric/sports.apx.-content-articles-RTD-2007-11-16-0121.html

Poverty and highwall mining in Appalachia

This is an article addressing poverty in SE Ohio.

http://www.athensnews.com/issue/article.php3?story_id=29931

Read this article on high-wall mining equipment. It makes claims of increased high-wall mining with decreased mountaintop removal mining resulting from recent court decisions.

http://www.kentucky.com/471/story/233700.html

House Environmental Committee Approves Coal Miner’s Day Resolution

The House Environmental Resources and Energy Committee this week reported out House Resolution 410 (DeWeese-D-Greene) that designates December 19 as "Coal Miner's Day" in Pennsylvania.

The Committee is Chaired by Rep. Bud George (D-Clearfield) and Rep. Scott Hutchinson (R-Venango) serves as the Republican Chair.

Plans for coal-fired electric nixed

The new owners of TXU, formerly Luminant, have dropped plans to build 8 of 11 proposed coal-fired power plants. The energy company has been taken private in a $45billion deal.

http://www.thedailygreen.com/2007/10/16/plan-to-build-8-coal-fired-power-plants-dropped/7838/