OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

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COALEX STATE INQUIRY REPORT - 61

October 25, 1985

Steve Stafford, Director

Division of Reclamation

Department of Natural Resources

309 W. Washington Street, Room 201

Indianapolis, Indiana 46204

TOPIC: 60% BOND RELEASE REQUIREMENTS

INQUIRY: What is considered necessary to obtain a 60% grading release of bond?

SEARCH RESULTS: Sec. 519(c) of the Surface Mining Control and Reclamation Act 

(SMCRA) allows the regulatory authority to release an operator's bond, in whole or in part, if it 

is satisfied that the reclamation or phase of reclamation has been accomplished. Conditions for 

bond release after successful completion of each of three phases of reclamation are also listed. 

Under Sec. 519(c)(1), sixty percent (60%) of bond may be released when the operator completes 

the backfilling, regrading, and drainage control of the bonded area in accordance with his 

approved reclamation plan.

This provision was included in every major version of SMCRA. In the 1975 version, the House 

committee noted that the decision to release sixty percent (60%) of the bond "should be based on 

the regulatory authority's inspection and assessment of: (1) conformance with the requirements 

of the Act; and (b) an assessment of the significance of residual problems of surface and ground 

water pollution, and the cost of completing reclamation and abating pollution." (H.R. Rep. No. 

45, 94th Cong., 1st Sess. 203 (1975))

FEDERAL REGULATIONS

OSM's regulations pertaining to the release of an operator's bond are found at 30 CFR Sec. 

800.40(c). The regulatory language essentially mirrors that of the SMCRA provision, but also 

notes parenthetically that the first phase may include the replacement of topsoil. Prior to 1983, 

OSM required topsoil replacement as part of its Phase I bond release; however, this requirement 

was removed to make the rules more closely reflect the wording of the Act. In the preamble to its 

1983 regulations, OSM noted that the Act did not necessarily include topsoil replacement in 

Phase I operations. Thus, the regulatory authority has discretion to include or not include topsoil 

replacement in Phase I reclamation. (48 FR 32932, 32953 (1983))

In the 1980 preamble to its final rules, OSM defined backfilling and regrading, topsoil 

replacement, and drainage control as follows:

"a) Backfilling and regrading: Return of overburden material to achieve rough contour as set 

forth in the reclamation plan.
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

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"b) Topsoil replacement: Return of the soil horizons which are capable of supporting vegetation, 

and fine grading of this stratum to finished contours.

"c) Drainage control: Construction of diversion ditches, swales, erosion-control structures, 

sediment control, and other aspects of fine grading required before initial planting." (45 FR 

523006, 52315 (1980))

STATE REGULATIONS

Information was located for twenty-three of the states listed with COALEX. Twelve states 

require backfilling, regrading, topsoil replacement, and drainage control for completion of Phase 

I of reclamation. Seven states require backfilling, regrading, and drainage control, but not topsoil 

replacement. These states are listed in the attached table. New Mexico's regulations state that 

regrading may include topsoil replacement, presumably at the discretion of the regulatory 

authority. (N. Mex Surface Coal Mining Regs., Sec. 14-40(1) (1984))

Three states require a variety of standards to be met for Phase I bond release. In Kentucky, Phase 

I is deemed to have been completed when the permittee completes backfilling, regrading, topsoil 

replacement, and drainage control, including soil preparation, seeding, planting and mulching in 

accordance with the approved reclamation plan. A planting report for the area must also be 

submitted to the department. (405 KAR 10:040E, Sec. 2(4)(a) (1981))

Maryland requires that a general bond be submitted, which then will not be released until all 

Phase I work is completed. Reclamation Phase I is defined to include backfilling, regrading, 

topsoil replacement, seeding, mulching, and drainage control. (Md. Admin. Code., Title 8, Sec. 

13.09.15H (1980))

Tennessee's regulatory program provides that no more than seventy percent (70%) of the bond 

may be released when Phase I of reclamation is completed. Phase I of the Tennessee program 

includes backfilling, regrading, topsoil replacement, drainage control, site preparation, mulching, 

liming, fertilizing, and seeding. (Tenn. Code Ann. Sec. 0400-1-10.06 (1982)) (NOTE: This is no 

longer in effect, since a federal program was developed for Tennessee.)

ATTACHMENTS

A. H.R. Rep. No. 45, 94th Cong., 1st Sess. (1975).

B. 48 FR 32932, 32953 (1983).

C. 45 FR 52307, 52315 (1980).

D. N. Mex. Surface Coal Mining Regs., Sec. 14-40 (1984).

E. 405 Kar 10:040E (1981).

F. Md. Admin. Code, Title 8, Sec. 13.09.15H (1980).

G. Tenn. Code Ann., Sec. 0400-1-10.06 (1982).
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

Search conducted by: S. Michele Manning

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TABLE I

States which require topsoil replacement:

Arkansas

Illinois

Iowa

Kansas

Louisiana

Mississippi

Missouri

Montana

Ohio

Oklahoma

Virginia

West Virginia

States not requiring topsoil replacement:

Alabama

Alaska

Colorado

Indiana

Pennsylvania

Texas

Utah