Postmining Land Use: Exceptions to Approximate Original Contour Requirements for Mountaintop Removal Operations and Steep Slope Mining Operations.

摘要

A general requirement under the Surface Mining Control and Reclamation Act (SMCRA) is that lands disturbed by mining must be reclaimed to their approximate original contour (AOC). 30 U.S.C. sec. 1265(b)(3). SMCRA creates limited exceptions to this requirement for mountaintop removal and steep slope mining operations, but operators wishing to take advantage of one of these exceptions must reclaim the mined land to a condition capable of supporting one of several allowable postmining land uses listed in SMCRA. 30 U.S.C. sec. 1265(c) (2) and (3) and 30 U.S.C. sec. 1265(e)(2). We have developed this paper to clarify the statutory and regulatory requirements relating to these postmining land uses. As discussed in this document, when Congress enacted SMCRA, it chose to allow exceptions from AOC only in situations where beneficial postmining land uses could compensate for the adverse effects of not returning the land to AOC. These adverse effects include more and larger excess spoil fills being generated by mountaintop removal and steep slope mining operations. This overarching principle of compensation is also reflected in the Office of Surface Mining's (OSM) alternative postmining land use regulations which impose a higher and better use reclamation standard on mountaintop removal and steep slope mining operations. Two corollaries arise from the principle of compensation: (1) a postmining land use cannot be approved where the use could be achieved without waiving the AOC requirement, except where it is demonstrated that a significant public or economic benefit will be realized therefrom; and, (2) where an exception or variance from the AOC requirement is sought, the postmining land use must always offer a net benefit to the public or the economy.