Mountaintop Removal Mining - Legislation in The United States

Legislation in The United States

In the United States, MTR is allowed by section 515(c)(1) of the Surface Mining Control and Reclamation Act of 1977. Although most coal mining sites must be reclaimed to the land's pre-mining contour and use, regulatory agencies can issue waivers to allow MTR. In such cases, SMCRA dictates that reclamation must create "a level plateau or a gently rolling contour with no highwalls remaining."

Permits must be obtained to deposit valley fill into streams. On four occasions, federal courts have ruled that the US Army Corps of Engineers violated the Clean Water Act by issuing such permits. Massey Energy Company is currently appealing a 2007 ruling, but has been allowed to continue mining in the meantime because "most of the substantial harm has already occurred," according to the judge.

The Bush administration appealed one of these rulings in 2001 because the Act had not explicitly defined "fill material" that could legally be placed in a waterway. The EPA and Army Corps of Engineers changed a rule to include mining debris in the definition of fill material, and the ruling was overturned.

On December 2, 2008, the Bush Administration made a rule change to remove the Stream Buffer Zone protection provision from SMCRA allowing coal companies to place mining waste rock and dirt directly into headwater waterways.

A federal judge has also ruled that using settling ponds to remove mining waste from streams violates the Clean Water Act. He also declared that the Army Corps of Engineers has no authority to issue permits allowing discharge of pollutants into such in-stream settling ponds, which are often built just below valley fills.

On January 15, 2008, the environmental advocacy group Center for Biological Diversity petitioned the United States Fish and Wildlife Service (FWS) to end a policy that waives detailed federal Endangered Species Act reviews for new mining permits. The current policy states that MTR can never damage endangered species or their habitat as long as mining operators comply with federal surface mining law, despite the complexities of species and ecosystems. Since 1996, this policy has exempted many strip mines from being subject to permit-specific reviews of impact on individual endangered species. Because of the 1996 Biological Opinion by FWS making case-by-case formal reviews unnecessary, the Interior's Office of Surface Mining and state regulators require mining companies to hire a government-approved contractor to conduct their own surveys for any potential endangered species. The surveys require approval from state and federal biologists, who provide informal guidance on how to minimize mines' potential effects to species. While the agencies have the option to ask for formal endangered species consultations during that process, they do so very rarely.

On May 25, 2008, North Carolina State Representative Pricey Harrison introduced a bill to ban the use of mountaintop removal coal from coal fired power plants within North Carolina. This proposed legislation would have been the only legislation of its kind in the United States; however, the bill was defeated.