OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

Search conducted by: S. Michele Manning

Page 1 of 3

COALEX STATE INQUIRY REPORT - 56

September 17, 1985

Randall Johnson, Acting Chief

Division of Surface Mining Control & Reclamation

Alabama Surface Mining Commission

P.O. Box 2390

Jasper, Alabama 35501

TOPIC: "APPROXIMATE ORIGINAL CONTOUR" (AOC)

INQUIRY: Identify all Federal District Court and Office of Hearing and Appeals Decisions 

which define "approximate original contour".

SEARCH RESULTS: A COALEX search was conducted of the pertinent files to identify the 

relevant cases. These cases do not specifically define approximate original contour (AOC), since 

a definition appears at 30 CFR Sec. 701.5 and Sec. 701(2) of SMCRA (30 U.S.C. 1291(2)):

"Approximate original contour means that surface configuration achieved by backfilling and 

grading of the mined area so that the reclaimed area, including any terracing or access roads, 

closely resembles the general surface configuration of the land prior to mining and blends into 

and complements the drainage pattern of the surrounding terrain, with all highwalls and spoil 

piles eliminated; water impoundments may be permitted where the regulatory authority 

determines that they are in compliance with Sec. 715.17."

The cases have interpreted this definition and the implementing regulations. A brief summary of 

each case identified follows.

IN RE: PERMANENT SURFACE MINING REGULATION LITIGATION, No. 79-1144 

(slip op.) (DDC July 15, 1985).

In this case, Judge Flannery remanded 30 CFR Sec. 816.49(a)(9) and Sec. 817.49(a)(9), which 

permitted the retention of highwalls in permanent impoundments. The Secretary argued that 

because the specific provision relating to impoundments does not require highwall elimination, 

removal was not required. The court noted that the performance standards of SMCRA expressly 

require the elimination of all highwalls, and that legislative history reflected a Congressional 

intent that all highwalls be eliminated, even in the case of express variances from AOC.

IN RE: PERMANENT SURFACE MINING REGULATION LITIGATION, No. 79-1144, 

slip op. (DDC May 16, 1980).

The Secretary asserted that the federal regulations required mining operators to restore to AOC 

surface mining areas affected by underground mines. The court ruled that, while SMCRA 

requires the restoration of mined lands to AOC, it also directs the Secretary to make 

modifications to accommodate the differences between surface and underground coal mining 
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

Search conducted by: S. Michele Manning

Page 2 of 3

Judge Flannery ruled that it was "duplicitous to require the removal of previously settled and 

revegetated land only to achieve the purpose of a second revegetation", since a great deal of time 

may lapse between the beginning and end of an underground mining operation. Therefore, the 

court remanded 30 CFR Sec. 817.101.

CITIZENS FOR RESPONSIBLE RESOURCE DEVELOPMENT v WATT, 579 F SUPP 

431 (1983).

The court upheld an Alabama Regulation giving the Alabama regulatory authority limited power 

to exempt underground operations from the requirement of redistributing spoil, based on Judge 

Flannery's decision.

WAYNE YARNELL, 3 IBSMA 188 (July 15, 1981).

This Interior administrative decision involved a citizen's suit. This suit alleged that the previous 

miner of the land in question had failed to reclaim a highwall before covering it with a 

permanent water impoundment. This impoundment was part of the approved postmining land 

use. The Board noted that 30 CFR Sec. 715.14(e) provides that land be returned to an appropriate 

contour when a permanent water impoundment is to be the postmining land use. While the Board 

declined to define "appropriate contour," they held it was not synonymous with "approximate 

original contour" and dismissed the violation.

LITTLE SANDY COAL SALES, 2 IBSMA 25 (February 19, 1980), which upheld a notice of 

violation for failure to eliminate a highwall and return the area to AOC. The operator argued that 

the highwall had been "pretty well eliminated" and the NOV should be vacated. The Board 

upheld the violation because (1) the state inspector felt the highwall had not been eliminated and 

(2) the area had not been adequately backfilled and graded.

CEDAR COAL COMPANY v OSM, No. CH 8-17-R (November 17, 1978).

An operator was cited for failure to restore an area to AOC and eliminate the highwall. However, 

the highwall in question had been abandoned for 10 years when the operator began mining. 

Inadequate spoil remained at the site to completely restore the area to AOC, and the operator had 

not disturbed the orphan highwall. After discussing the legislative history of SMCRA, ALJ Allen 

found that there was no explicit requirement in SMCRA for the complete recovery of abandoned 

highwalls. ALJ Allen defined a "disturbance" of an existing highwall as "the cutting into that 

highwall to such an extent that it renders the highwall a threat in some manner to the public or to 

the environment, or that the highwall is attempted to be restructured or resloped to a different 

degree in order to facilitate mining". Thus, the operator was only required to use the existing 

spoil to return the area to AOC, since there had been no disturbance of the orphan highwall.

The legislative history of the phrase "Approximate Original Contour" was examined in 

COALEX STATE INQUIRY REPORT - 16. Other issues pertaining specifically to the 

requirement to eliminate highwalls were discussed in COALEX SIGNIFICANT ISSUE 

REPORT - 38, "Elimination of Highwalls".
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

Search conducted by: S. Michele Manning

Page 3 of 3

ATTACHMENTS

A. Excerpt, IN RE: PERMANENT SURFACE MINING REGULATION LITIGATION, 

No. 79-1144 slip op. (DDC July 15, 1985).

B. Excerpt, In RE: PERMANENT SURFACE MINING REGULATION LITIGATION, No. 

79-1144, slip op. (DDC May 16, 1980).

C. Excerpt, CITIZENS FOR RESPONSIBLE RESOURCE DEVELOPMENT v WATT, 

579 F Supp 431 (1983).

D. WAYNE YARNELL, 3 IBSMA 28 (July 15, 1981).

E. LITTLE SANDY COAL SALES, 2 IBSMA 25 (February 19, 1980).

F. CEDAR COAL CO. v OSM, No. CH 8-17-R (November 17, 1978).

G. COALEX STATE INQUIRY REPORT - 16, "Approximate Original Contour", (1984).

H. COALEX SIGNIFICANT ISSUE REPORT - 38, "Elimination of Highwalls" (formerly 

named SIGNIFICANT ISSUE REPORT - 1).