Blog By: Braydan Roark
Coal mining has long been a central industry in Kentucky; since the late 1980’s surface mining has been a primary method of extraction in the Commonwealth.[i] In the Appalachian coal fields of Kentucky, West Virginia, Virginia, and Tennessee, it is estimated that mountain top removal mining, an extreme form of surface mining, has impacted 2,300 square miles of land.[ii] As the name suggests, mountaintop removal mining, sometimes referred to a “strip mining,” quite literally results in the removal of the surface of a mountain to reveal an underlying deposit of coal.[iii] Prior to successful reclamation, a mined area is somewhat reminiscent of a lunarscape. The mining process naturally results in the upheaval of grayish bedrock that is ordinarily deep below upper levels of rock and topsoil. [iv] This grayish bedrock is then used to recontour the mountain and typically becomes the top-layer of “soil” where reclamation efforts take place. [v]
The reclamation of mined areas is governed in large part by the Surface Mining Control and Reclamation Act (SMCRA).[vi] According to the SMCRA, the goal of any reclamation is to restore any disturbed area to conditions capable of supporting a suitable use of the land that it could have prior to mining, or a “higher or better use.”[vii] Kentucky has mandated that surface mined areas be revegetated in accordance with an approved post-mining land use.[viii] The Kentucky Administrative Regulations currently allow surface mined lands to be reclaimed for several post-mining uses. [ix] A few examples of these uses include pastureland, cropland, forest land, and residential.[x]
Pastureland has long been the preferred post-mining land use in Kentucky. As defined, pastureland represents a “higher or better use” in accordance with the SMCRA. [xi] Pastureland reclamation is initially aesthetically pleasing because it results in smooth contours and rolling fields of green plant growth. These rolling fields of green are what many envision when thinking of reclamation. The unpleasant reality lies in the fact that most landowners fail to use the newly created pastures for any livestock grazing or forage crop production.[xii] Rather, these fields of green are permitted to remain fallow with dense brush and invasive grasses taking over in relatively short order. Thus, the goal of achieving a “higher and better” land use is rarely ever achieved.[xiii] These pastureland areas may remain unforested for centuries and adversely impact nearby communities in a number of ways.
An alternate, but much less frequently employed post-mining land use is forest land.[xiv] When lands are reclaimed for forestland use, the overarching goal is to establish a productive forest habitat that has the capability to generate both economic and environmental benefits for landowners and surrounding areas.[xv] Kentucky law provides landowners the option of planting commercially managed or unmanaged forests as a means of reclaiming the land to a higher or better use.[xvi] Under either option, at least 300 trees or shrubs must be planted per acre and seventy five percent of the total stock must be composed of tree species and not shrubbery.[xvii] Although forestland has long been an approved post-mining land use, there has been a misconception among mine operators that such reclamation was more costly and less effective than reclamation as pastureland.[xviii] These misconceptions led many operators to cast aside the forestland approach as an unviable form of reclamation.
The Department of Agriculture and the Office of Surface Mining Reclamation and Enforcement have conducted studies proving that forestland reclamation is both cost-effective and environmentally sustainable.[xix] When mined land is reclaimed using the forestry reclamation approach, a specific method of reclamation for forest growth, the soil is not compacted and aggressive groundcover is not planted.[xx] Rather, a diverse mix of trees and shrubbery is planted alongside natural groundcover vegetation that limits surface soil runoff while a stand of timber is established.[xxi] Initially, the forestry reclamation approach leaves the mined area with a rough appearance that leads many operators who are used to the smoothly contoured pastureland to conclude that forestland reclamation is undesirable and ineffective.[xxii] After a period of years, however, the forestry reclamation approach results in a diverse and valuable forest resource that can be passively or actively managed to align with landowner goals.[xxiii]
Although forestland reclamation is not as aesthetically pleasing in the beginning, it has numerous benefits over the pastureland approach. As a preliminary matter, mine operators will realize a cost savings because the forestry reclamation approach doesn’t require the use of heavy machinery to grade and compact the soil. Instead, the top few feet of soil is left loose so that trees may be planted and to allow rainfall to penetrate deeper.[xxiv] Consequently, this loose soil mitigates rapid runoff and allows for root development that decreases erosion and further limits flash flooding in nearby low-lying areas.[xxv] Successful forest reclamation can lead to harvestable trees within as little as 30 years, providing landowners with the future economic gains associated with timber harvests.[xxvi]
Ultimately, the choice of how to reclaim mined land falls to the landowner and mine operator. When balancing the costs and benefits of different post-mining land uses, the interested parties should consider the consequences of both pastureland and forestland reclamation as they relate to the mined land and surrounding communities. In many cases, forestland reclamation may be preferential due to lower costs, improved environmental outcomes, and the potential for economically beneficial timber operations in the future.
[i] Ky. Energy & Env’t Cabinet, 17 Kentucky Coal Facts 1, 12 (2017).
[ii] James Bruggers, How Coal Companies Walked Away, Courier J. (2022), https://www.courier-journal.com/story/money/2022/01/05/legacy-coal-absolutely-massive-environmental-catastrophe/6420523001/, [https://perma.cc/ALJ2-7V3Q].
[iii] What is Mountaintop Removal Mining, EarthJustice (2010), https://earthjustice.org/feature/what-is-mountaintop-removal-mining [https://perma.cc/7RY2-E9R7].
[iv] Basic Information About Surface Coal Mining in Appalachia, EPA, https://www.epa.gov/sc-mining/basic-information-about-surface-coal-mining-appalachia (last visited Mar. 14, 2023) [https://perma.cc/K7R3-BKZA].
[v] Id.
[vi] 30 U.S.C. §§ 1201-1328 (2023).
[vii] 30 U.S.C. § 1265 (2023).
[viii] 405 Ky. Admin. Regs. 16:210(1) (2023).
[ix] 405 Ky. Admin. Regs. 16:210(2) (2023).
[x] Id.
[xi] See 405 Ky. Admin. Regs. 16:210(2)(b) (2023).
[xii] Rob Perks, The Myth of Mountaintop Removal Reclamation, Nat. Res. Def. Council (2010), https://www.nrdc.org/media/2010/100517 [https://perma.cc/3T24-WSRU].
[xiii] Id.
[xiv] See 405 Ky. Admin. Regs. 16:210 (2023); Mary Beth Adams, The Forestry Reclamation Approach: Guide to Successful Reforestation of Mined Lands, U.S. Dep’t of Agric. (2017), https://www.fs.usda.gov/nrs/pubs/gtr/gtr_nrs169.pdf [https://perma.cc/27AU-XU2P].
[xv] Adams, supra note xiv at 1-1.
[xvi] 405 Ky. Admin. Regs. 16:200 (2023)
[xvii] Id.
[xviii]Adams, supra note xiv at 1-2.
[xix] Id.
[xx] Id. at 6-2.
[xxi] Id.
[xxii] Id.
[xxiii] Adams, supra note xiv at 6-2.
[xxiv] Id. at 4-2.
[xxv] Id. at 4-1, 4-2.
[xxvi] Id. at 1-2.