OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

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COALEX STATE INQUIRY REPORT - 292

July 1994

Lowell P. Braxton

Associate Director, Mining

Utah Department of Natural Resources

Division of Oil, Gas and Mining

355 West North Temple

3 Triad Center, Suite 350

Salt Lake City, Utah 84180-1203

TOPIC: HIGHWALL ELIMINATION & AOC: "BLENDING IN"

INQUIRY: Please locate recent decisions and other materials that discuss highwall 

elimination or restoring disturbed lands to their "approximate original contour". Of 

particular interest is material on the definition of "approximate" or what constitutes 

"blending in" with the surrounding terrain. 

SEARCH RESULTS: An OSM Directive and a number of Interior administrative 

decisions were identified that were exactly on point. These are listed below and copies 

are attached. Some additional relevant but less persuasive materials are also included 

for your review. 

FROM KAREN JACOBS, ILLINOIS DMM:

Illinois has a case involving Consolidated Coal Co., AOC and "blending in" before Judge 

Torbett, an Interior Administrative Law Judge. The case was briefed in mid-spring. They 

are awaiting Torbett's decision. Karen used these materials in the state's brief:

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

Contour" (Issued May 26, 1987).

3. Policy-Procedures. 

"a. Background. In modifying the phrases 'original contour' and 'surface configuration', in 

the definition of AOC with the terms 'approximate' and 'general', respectively, 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."
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

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...

c. Procedures.

...

"(2) Inspection Criteria. AOC is achieved through a reasonable, but not necessarily 

exact, rendering of the approved postmining topography. 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....

(b) Drainage....

(c) Highwalls and spoil piles...."

IN THE MATTER OF WILLIAM H. PULLEN, JR., ET AL., Docket No. IBLA 88-452 

(1992).

The Pullens, landowners of two permitted surface areas, objected to the Phase I bond 

release applied for by American Standard Coal Company, Inc. on behalf of Jackson 

County Mining. Judge Torbett found that the requirements for Phase I bond release 

were met: sites were backfilled and graded to AOC, highwalls were properly reclaimed, 

the slope angles posed no threats of slides and erosion was minimized. Regarding 

AOC, the ALJ stated:

"The two key words in this definition [of AOC] are 'general configuration'. Approximating 

the original contour does not require an exact match with the original contours."

...

"The nature of coal mining dictates that the topography will change. The elevation is 

permanently changed when the coal is removed. The contour changes again when the 

overburden is replaced. It would be virtually impossible for the reclamators to match 

exactly what nature took centuries to do in weathering the slopes."

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

As a result of Rosati's citizen's complaint, OSM undertook an inspection of the minesite. 

Although the inspection revealed a "somewhat significant change in the slope of the 

mined land immediately adjacent to appellant's fence line", OSM, exercising its 

oversight responsibility, independently determined that Daugherty Coal Company, Inc. 

had backfilled and graded the disturbed area so that the contour closely resembled the 

general surface configuration of the premined area. 

PACIFIC COAST COAL CO. v OSM, 118 IBLA 83, IBLA 91-121 (1991). PACIFIC 

COAST COAL CO. v OSM, Docket No. IBLA 90-201 (1990). 

The Board and the ALJ discussed federal cases, OSM Directive INE-26, as well as 

statutory and regulatory requirements in affirming OSM's denial of Pacific Coast's permit 

revision application for creation of a permanent water impoundment. Retention of the 
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

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spoil piles as permanent topographical features would not conform to the AOC of the 

premined area.

NICKEL PLATE MINING CO., Inc., Docket No. NX 5-112-R (1987).

Citing to congressional intent that the AOC standard be flexible and OSM Directive INE26, the ALJ gave greater weight to the applicant's witnesses "who had the benefit of 

seeing the subject site before, during, and after mining" in concluding that the "alleged 

highwall" was a premining logging road, the "alleged spoil pile existed as a hill prior to 

mining, though it now has increased elevation", and that the "hollow existed prior to 

mining, thought it may be deeper now." The reclaimed site "blends into the surrounding 

terrain, complements the drainage of the area, is suitable for its intended postmining 

use, and is not aesthetically offensive."

PRIOR COALEX STATE INQUIRY REPORTS:

COALEX STATE INQUIRY REPORT - 16, "Approximate original contour" (1984).

This Report investigates the legislative history of the phrase. Included with attachments. 

In particular, see Document A, Excerpts from H.R. 218, 95th Cong., 1st Sess. (April 22, 

1977).

From "Elements of Mine Regulation Program", "Return to approximate contour". (p 96):

"[T]he regrading standard of H.R. 2 was formulated to cover all types of mining 

operations under all conditions. Thus it is, of necessity, a flexible standard which 

contemplates different mining circumstances."

COALEX STATE INQUIRY REPORT - 56, "Approximate original contour" (1985).

Report 56 provides federal decisions and Interior administrative decisions defining AOC.

ADDITIONAL INFORMATION

The following materials are relevant but less persuasive than those above:

1. FREMONT COAL v OSM, Docket Nos. CH 91-1-R, CH 91-2-R (1991).

2. BERNOS COAL CO. AND EXCELLO LAND AND MINERAL CORP. v OSM, 97 

IBLA 285, IBLA 85-845 (1987).

3. DENNIS ZACCAGNINI, 96 IBLA 97, IBLA 85-762 (1987).

4. CLINCHFIELD COAL CO. v OSM, 95 IBLA 360, IBLA 84-159 (1987).

5. KENNETH MARSH, 82 IBLA 3, IBLA 83-616 (1984).

6. BIG FORK MINING CO., INC. v OSM, Docket No. NX 1-102-R (1984).

7. ST. CHARLES MINING CO., INC. v OSM, 94 IBLA 183, IBLA 84-862 (1986).

8. LITTLE SANDY COAL SALES, 2 IBSMA 25, IBSMA 80-3 (1980).
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

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9. LITTLE SANDY COAL SALES v OSM, Docket Nos. NX 9-56-R, NX 9-73-R 

(1979).

10.OSM DIRECTIVE, Subject No. INE-39, Transmittal No. 543, "Highwall 

Elimination on Interim Program Sites" (Issued 6/7/89) [Incorporates INE-39, 

Issued 7/20/93.]

11.TEMPORARY OSM DIRECTIVE, Subject No. 88-3, Transmittal No. 426, 

"Highwall Elimination" (Issued 2/16/88).

Also included are four cite lists from COALEX and LEXIS:

1. Interior Administrative Decisions containing the search terms "highwall" and 

"AOC" or "approximate original contour".

2. Interior Administrative Decisions containing the search terms "highwall" and 

"AOC" or "approximate original contour" as well as some form of "blend" or 

"resemble" or "complement".

3. Federal SMCRA cases containing the search terms "highwall" and "AOC" or 

"approximate original contour". 

4. Federal Register notices on federal regulations containing the search terms in 

the preamble.

ATTACHMENTS

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

Original Contour" (Issued May 26, 1987). 

B. IN THE MATTER OF WILLIAM H. PULLEN, JR., ET AL., Docket No. IBLA 88-

452 (1992). 

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

D. PACIFIC COAST COAL CO. v OSM, 118 IBLA 83, IBLA 91-121 (1991). 

E. PACIFIC COAST COAL CO. v OSM, Docket No. IBLA 90-201 (1990). 

F. NICKEL PLATE MINING CO., Inc., Docket No. NX 5-112-R (1987). 

G. COALEX STATE INQUIRY REPORT - 16, "Approximate original contour" (1984). 

H. COALEX STATE INQUIRY REPORT - 56, "Approximate original contour" (1985). 

I. FREMONT COAL v OSM, Docket Nos. CH 91-1-R, CH 91-2-R (1991). 

J. BERNOS COAL CO. AND EXCELLO LAND AND MINERAL CORP. v OSM, 97 

IBLA 285, IBLA 85-845 (1987). 

K. DENNIS ZACCAGNINI, 96 IBLA 97, IBLA 85-762 (1987). 

L. CLINCHFIELD COAL CO. v OSM, 95 IBLA 360, IBLA 84-159 (1987). 

M. KENNETH MARSH, 82 IBLA 3, IBLA 83-616 (1984). 

N. BIG FORK MINING CO., INC. v OSM, Docket No. NX 1-102-R (1984). 

O. ST. CHARLES MINING CO., INC. v OSM, 94 IBLA 183, IBLA 84-862 (1986). 

P. LITTLE SANDY COAL SALES, 2 IBSMA 25, IBSMA 80-3 (1980). 

Q. LITTLE SANDY COAL SALES v OSM, Docket Nos. NX 9-56-R, NX 9-73-R 

(1979). 
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

Search conducted by: Joyce Zweben Scall Page 5 of 5

R. OSM DIRECTIVE, SUBJECT No. INE-39, Transmittal No. 543, "Highwall 

Elimination on Interim Program Sites" (Issued 6/7/89) [Incorporates INE-39, 

Issued 7/20/93.] 

S. TEMPORARY OSM DIRECTIVE, Subject No. 88-3, Transmittal No. 426, 

"Highwall Elimination" (Issued 2/16/88). 

T. Four cite lists from COALEX and LEXIS: 

1. Interior Administrative Decisions containing the search terms "highwall" 

and "AOC" or "approximate original contour". 

2. Interior Administrative Decisions containing the search terms "highwall" 

and "AOC" or "approximate original contour" as well as some form of 

"blend" or "resemble" or "complement". 

3. Federal SMCRA cases containing the search terms "highwall" and "AOC" 

or "approximate original contour". 

4. Federal Register notices on federal regulations containing the search 

terms in the preamble.