OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

Search conducted by:Joyce Zweben Scall Page 1 of 6

COALEX STATE INQUIRY REPORT - 341

May 1998

Charles Sturey

Division of Environmental Protection

10 McJunkin Road

Nitro, West Virginia 25143

TOPIC: Approximate original contour (AOC)

INQUIRY: Please survey the other IMCC member states and conduct research on the

following issues:

1. What are the other states' definitions of "AOC"?

2. Do the other states have standards for determining AOC, e.g., criteria for

establishing when an area "closely resembles the general surface configuration

of the land prior to mining" and when it doesn't?

3. What are other states' requirements for variances from AOC and exemptions for

mountaintop removal?

SEARCH RESULTS: Research was conducted using prior COALEX Reports, COALEX

and other materials available in LEXIS and a telephone survey of selected states.

For the most part, the language and requirements of the state statutes and regulations

follow federal SMCRA and regulations. For implementing the rules, states use OSM

Directive INE-26 as a guideline. States have also been using several Interior

administrative decisions for guidance.

Directive INE-26 and the most persuasive Interior decisions, identified by research and

provided by IMCC member states in response to the survey, are listed below. Copies of

these items are attached. Several COALEX Reports are also attached. These discuss

additional Interior administrative decisions as well as legislative history materials.

Copies of these Reports are included without attachments.

Two tables attached to the end of this Report provide a summary of survey results and

a list of relevant federal regulations with the cite for the most recent Federal Register

notice where those rules are discussed. A listing of the regulatory history of each of

these regulations is also provided.
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

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OSM DIRECTIVE, Subject No. INE-26, Transmittal No. 338, "Approximate Original

Contour" (Issued 5/26/87).

"The purpose of this directive is to provide policy guidance and procedures for

determining whether backfilling and grading have met the requirements of approximate

original contour...."

The Background section provides a statement on congressional intent:

"...Congress recognized and acknowledged that there would likely be differences

between the premining and postmining topography. Furthermore, the reclamation of any

minesite must take into consideration and accommodate site-specific and unique

characteristics of the surrounding terrain and postmining land uses. Consequently, AOC

determinations must necessarily retain a certain amount of subjectivity and often rely

principally on the judgment of the regulatory authority, which has been given the primary

responsibility for such decisions under the Act."

The Procedures section provides some specific guidance on such topics as:

(1) The role of permitting: "...the anticipated postmining topography must be determined

in the permitting process with typical cross section or contour maps depicting both the

premining and anticipated postmining slopes with sufficient clarity and detail to enable a

comparison to determine if AOC has been achieved."

(2) Inspection criteria: "Inspectors shall determine whether AOC requirements have

been met by applying the following three elements contained in the definition of AOC.

(a) General surface configuration: postmining contours of the reclaimed area should

"closely resemble" but need not "exactly match" the premining contours. "...the general

terrain should be comparable to the premined terrain".

(b) Drainage: The reclaimed area should blend into and complement the drainage

pattern of the surrounding area.

(c) Highwalls and spoil piles: Highwalls, spoil piles, and depressions "shall be eliminated

in a manner which blends in with the surrounding terrain."

PETER J. ROSATI, 119 IBLA 219, IBLA 89-228 (1991).

Rosati contended that the disturbed area of Daugherty's mine nearest Rosati's fence

line was not restored to AOC "as the contour remaining after backfilling and grading

differs from the original contour by more than 3 feet." The Board, citing to the legislative

history, determined that there was no requirement to return the disturbed area to the

exact premining contour. They noted that "while there was arguably a somewhat

significant change in the slope of the mined land immediately adjacent to appellant's

fence line, the overall change in the slope across the disturbed area from the fence line

was much milder."

CONSOLIDATION COAL CO. v OSM, Docket No. CH 94-6-R (1994).
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

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A citizen's complaint alleged that "Consolidation had constructed a diversion of an

intermittent stream which had caused significant change in the contour and land use."

The NOV cited Consolidated for the ditch and spoil placement that resulted in slopes

that did not achieve AOC.

OSM disagreed with the Illinois Department of Mines and Minerals in the matter of AOC.

The Board, citing to OSM Directive INE-26, analyzed Illinois's AOC requirements, how

they were implemented with regard to the mined area and ruled that Illinois'

determination that AOC had been received was not arbitrary or capricious.

Illinois "employed its customary site-wide standard. In other words, it did not base its

decision on whether the Kadolph site looked almost identical post-mining as it had premining. Rather, it compared the pre- and post-mining criteria over the 600 plus acre

site."

CO-OP MINING CO. V OSM, Docket No. DV 94-4-R (1994).

Co-Op was cited for failing to use all available material to return disturbed areas to AOC

by eliminating highwalls and cuts. The Board ruled that "the preponderance of the

evidence shows that there are no highwalls, as that term is defined in the Utah

program". In addition, the Board found that the testimony of Co-Op's witnesses was

more persuasive than OSM's witnesses. Co-Op's witnesses had knowledge of the

original contour of the mined area and could provide greater factual details.

WILLIAM H. PULLEN, JR. et al., 132 IBLA 224, IBLA 92-335 (1995).

Pullen challenged Phase I bond release claiming that the Jackson County Mining Corp.

had failed to backfill and grade the mined areas to AOC and remove all of the highwalls.

The Interior Board found that the "record established that the premining contours could

never be fully restored using the remaining material available to the permittee,

especially given the swell' in the replaced overburden and the void left by the removed

coal." The Board decision quoted from the ALJ's ruling which said that OSM requires

"that the general configuration of the terrain following reclamation be comparable' to the

premining terrain" and that while there were "deviations", none was "truly substantial". In

addition, the ALJ found that no unreclaimed highwalls existed.

"[O]verall, such limited deviations are not considered violative of the requirement of

AOC. Indeed, even with these deviations, the general surface configuration of the land

is basically the same before and after mining and reclamation, as required by SMCRA."

MORGAN FARM, INC., 141 IBLA 95, IBLA 94-775 (1997). IN THE MATTER OF:

MORGAN FARMS, INC., Maryland Office Of Administrative Hearings Case No. 91-

DNR-BOM-049-80 (1992).
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

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Morgan Farms filed a citizen's complaint challenging the release of reclamation bonds

covering the Jones Coal Co. permit, alleging that Jones Coal had not returned the

mined land to AOC: hills and depressions existed where there had been level land prior

to mining. Morgan Farms "concerns included insufficient topsoil, steep slopes, and

debris."

The Interior Board cited to the Maryland ALJ's determination that Morgan Farms failed

to show that the land had not been reclaimed to AOC, "that there were substantial

deviations between premining and postmining contours." The testimony of the

permittee's witnesses convinced the Maryland ALJ, and the IBLA, that when the "overall

changes" in contour were considered, rather than "changes in specific areas", the

"highwalls and spoil piles had been eliminated, adequate drainage attained, and the

general topography of the reclaimed land" complimented and blended into the

surrounding terrain. he Maryland ALJ's ruling cites to OSM Directive INE-26 and the

decisions listed above.

COALEX STATE INQUIRY REPORT - 292, "HIGHWALL ELIMINATION & AOC:

BLENDING IN'" (1994).

This earlier Report discusses AOC from a similar perspective and includes a number of

the documents summarized above. Report - 292 includes additional relevant Interior

decisions, OSM directives and two prior Reports:

COALEX STATE INQUIRY REPORT - 16, "APPROXIMATE ORIGINAL CONTOUR"

(1984) investigates the legislative history of the phrase.

COALEX STATE INQUIRY REPORT - 56, "APPROXIMATE ORIGINAL CONTOUR"

(1985) provides earlier Interior administrative decisions defining AOC.

COALEX STATE INQUIRY REPORT - 190, "VARIANCE FROM AOC FOR PARTIAL

MOUNTAINTOP REMOVAL" (1991).

This Report includes some Interior administrative decisions and Federal Register

preambles to federal regulations regarding the issue in question.

ATTACHMENTS

A. Table of Survey Results

B. Table of Relevant Federal Regulations

C. Regulatory History

D. OSM DIRECTIVE, Subject No. INE-26, Transmittal No. 338, "Approximate

Original Contour" (Issued 5/26/87).

E. PETER J. ROSATI, 119 IBLA 219, IBLA 89-228 (1991).

F. CONSOLIDATION COAL CO. v OSM, Docket No. CH 94-6-R (1994).

G. CO-OP MINING CO. V OSM, Docket No. DV 94-4-R (1994).
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

Search conducted by:Joyce Zweben Scall Page 5 of 6

H. WILLIAM H. PULLEN, JR. et al., 132 IBLA 224, IBLA 92-335 (1995).

I. MORGAN FARM, INC., 141 IBLA 95, IBLA 94-775 (1997).

J. IN THE MATTER OF: MORGAN FARMS, INC., Maryland Office Of

Administrative Hearings Case No. 91-DNR-BOM-049-80 (1992).

K. COALEX STATE INQUIRY REPORT - 292, "HIGHWALL ELIMINATION & AOC:

BLENDING IN'" (1994).

L. COALEX STATE INQUIRY REPORT - 16, "APPROXIMATE ORIGINAL

CONTOUR" (1984).

M. COALEX STATE INQUIRY REPORT - 56, "APPROXIMATE ORIGINAL

CONTOUR" (1985).

N. COALEX STATE INQUIRY REPORT - 190, "VARIANCE FROM AOC FOR

PARTIAL MOUNTAINTOP REMOVAL" (1991).

Survey and research conducted by: Joyce Zweben Scall

SURVEY RESULTS

This comparison of state regulation sections to the federal rules was conducted using

the state regulatory program files in the COALEX Library. The material in the state

regulatory program files are current through 1991.

DEFINITION OF AOC found at 30 CFR 701.5

The language used to define AOC

found in the regulations of these state

programs are identical to the language

found in the federal rules:

Alabama, Alaska, Arkansas, Colorado,

Illinois, Indiana, Iowa, Kentucky,

Louisiana, Mississippi, Missouri,

Montana, New Mexico, Ohio, Oklahoma,

Pennsylvania, Texas, Utah, Virginia

The language used to define AOC for

these two states is similar, but not

identical to that used in the federal

rules:

Maryland, Wyoming

REQUIREMENTS FOR PERMITS FOR SPECIAL CATEGORIES OF MINING -

MOUNTAINTOP REMOVAL, 30 CFR 785.14

The requirements for mountaintop

removal for these state programs are

substantially the same as the federal

requirements:

Alabama, Alaska, Arkansas, Colorado,

Illinois, Kentucky, Maryland, New

Mexico, Ohio, Oklahoma, Virginia
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

Search conducted by:Joyce Zweben Scall Page 6 of 6

REQUIREMENTS FOR PERMITS FOR SPECIAL CATEGORIES OF MINING -

VARIANCES FROM AOC FOR STEEP SLOPE MINING, 30 CFR 785.16

The requirements for variances

from AOC for these state programs

are substantially the same as the

federal requirements:

Alabama, Illinois, Indiana, Iowa, Louisiana,

New Mexico, Oklahoma, Pennsylvania,

Virginia, West Virginia

TABLE OF RELEVANT FEDERAL REGULATIONS

REQUIREMENTS FOR PERMITS:

SECTION HEADER FEDERAL REGISTER SITE

30 CFR 785.14 Mountaintop Removal Mining 52 FR 39182 (Oct. 20, 1987)

30 CFR 785.15 Steep Slope Mining 51 FR 9006 (Mar. 17, 1986)

30 CFR 785.16 Variances from AOC for Steep

Slope Mining

56 FR 65612 (Dec. 17, 1991)

PERFORMANCE STANDARDS:

SECTION HEADER FEDERAL REGISTER SITE

30 CFR 816.102 Backfilling & Grading: General

Requirements

57 FR 33874 (July 31, 1992)

30 CFR 816.104

30 CFR 816.105

Backfilling & Grading: Thin &

Thick Overburden

56 FR 65612 (Dec. 17, 1991)

30 CFR 816.106 Backfilling & Grading:

Previously Mined Areas

58 FR 3466 (Jan. 8. 1993)

30 CFR 816.107 Backfilling & Grading: Steep

Slopes

48 FR 41719 (Sept. 16, 1983)

[NOTE: 30 CFR Part 826, Operations on Steep Slopes. was removed May 24, 1983 (48

FR 23355).]

See the attached Regulatory History Table of these sections for a complete listing of

relevant Federal Register preambles to revisions of these rules.