OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

Research conducted by: Terri H. Petruska and A. Michael Tucker Page 1 of 3

COALEX STATE INQUIRY REPORT - 28

February 26, 1985

Randall Johnson, Acting Chief

Division of Surface Mining Control and Reclamation

Surface Mining Commission

P.O. Box 2390

Jasper, Alabama 35501

TOPIC: RECLAMATION OF PREVIOUSLY DISTURBED AREAS

INQUIRY: A company permits totally a site which was previously mined but unreclaimed by 

another company. This permittee redisturbs only a portion of the original area or only conducts 

incidental disturbances on portions of the previously disturbed area such as sediment basins or 

haulroads. Is there any case law defining the permittee's obligation or responsibility to reclaim 

those portions of the previously disturbed area which were permitted by him but not 

redisturbed?

SEARCH RESULTS:

A search of the Department of Interior's COALEX Library containing administrative law judge 

opinions* did not identify any decisions concerning a permittee's responsibility to reclaim 

portions of previously disturbed areas which were permitted by the operator but not redisturbed. 

Also, a LEXIS search for state cases did not locate any pertinent decisions.

*The ALJ File is currently being updated by OSM and may not be complete.

Three Interior Board of Surface Mining Appeals (IBSMA) decisions concerning reclamation of 

orphan highwalls were identified. Those opinions, as well as relevant federal regulations and a 

district court settlement, are discussed below.

Remining has been recognized by OSM as a viable alternative to AML funding to reclaim 

previously mined areas -- especially in steep slope areas of Appalachia where removal of 

mountaintop remnants, auger mining, and second cuts on single and multiple seams are 

common mining methods. In general, the regulations appear to address the reclamation of 

premined areas in terms of areas of redisturbance. (See 47 FR 27734 (1982) for a general 

discussion of remining regulations.)

In the preamble discussion to the regulations on the elimination of preexisting highwalls, OSM 

made the following remarks concerning previously mined areas which are not disturbed by the 

remining operation:

"[T]he final rule does not impose a burden on operators to reclaim surrounding areas 

undisturbed b the remining operation. It addresses only reclamation of preexisting highwalls 

and not other possible preexisting conditions. The proposal did not extend any special 

requirements to such areas,= and the reclamation responsibility for surrounding areas will 

depend upon whether or not they are disturbed by the remining operation." (48 FR 41731-

41732 (1983))
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

Research conducted by: Terri H. Petruska and A. Michael Tucker Page 2 of 3

In general, therefore, reclamation responsibility for a previously mined area ensues if the 

area has been redisturbed. However, the Interior Board and OSM went one step further for 

highwall elimination requirements. The relevant question changed from that of whether an 

area had been disturbed to whether, in the case of an orphan highwall, the new mining 

operation had an "adverse physical impact".*

*Recently, the definition and application of "adverse physical impact" was suspended from the 

federal regulations. (50 FR 257 (1985))

Interior Board Decisions

CEDAR COAL CO., 1 IBSMA 145 (1979).

A West Virginia coal operation's only effect on an orphaned highwall was that the highwall 

had been partially covered by excess spoil material - backfilled during reclamation of an 

adjacent permit area. The Board found no basis for finding that the partial covering of the 

orphaned highwall had caused an adverse physical impact on the remaining exposed 

portions of the highwall, and that Cedar did not "disturb" the orphan highwall within the 

meaning of 30 CFR Sec. 710.11(d)(1). Thus, the Board held that the interim regulation 

concerning backfilling and grading (30 CFR Sec. 715.14) did not apply to previously mined 

lands on which no adverse physical impact had resulted from surface coal mining and 

reclamation operations conducted after the effective date of the federal initial performance 

standards.

MIAMI SPRINGS PROPERTIES, 2 IBSMA 399 (1980).

The Miami Springs operation had auger-mined a previously mined coal seam at the base of 

an orphan highwall. The Board held that "a permittee who did disturb an orphan highwall in 

such a way as to cause an adverse physical impact on the highwall might be responsible for 

its complete elimination." The Board then remanded the case to the Administrative Law 

Judge to determine if the Miami Springs' operations had caused an adverse physical impact 

on the highwall. The case was subsequently dismissed when the ALJ, on rehearing, found 

no adverse physical impact had occurred.

MOUNTAIN ENTERPRISES COAL CO., 3 IBSMA 338 (1981).

The Board restated its position concerning the application of the highwall elimination 

requirements when previously mined land was involved. The Board focused on "whether the 

new mining has had an adverse physical impact on the orphaned highwall."

OSM interpreted these Board decisions to mean that "in order for OSM to require an operator to 

eliminate all or part of a preexisting highwall, the operator's activities must, in some way, have 

had an adverse physical impact on that portion of the highwall." (47 FR 27737 (1982)) As a 

consequence, federal regulations were promulgated defining "adverse physical impact" and 

allowing for a variance to highwall elimination. (48 FR 41720 (1983))

The federal regulation concerning the backfilling and grading of previously mined areas, 

promulgated in September, 1983, consists of two parts. The first part, 30 CFR Sec. 816.106(a), 

contains a variance to highwall elimination when the available spoil is shown to be "insufficient 

to completely backfill the reaffected or enlarged highwall."
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

Research conducted by: Terri H. Petruska and A. Michael Tucker Page 3 of 3

The second part, 30 CFR 816.106(b), has recently been suspended as a result of a district court 

settlement. Sec. 816.106(b) stated that:

"[The regulations] requiring the elimination of highwalls shall not apply to remining 

operations that will not cause an adverse physical impact on the preexisting highwall. Such 

remining operations shall comply with the following:

"(1) The backfill shall be graded to a slope which is compatible with the approved postmining 

land use and which provides adequate drainage and long-term stability. (2) Any highwall 

remnant shall be stable and not pose a hazard to the public health and safety or to the 

environment."

Along with Sec. 816.106(b) (and Sec. 817.106(b)/underground mining), OSM suspended the 

definition of "adverse physical impact". The suspensions were a result of an agreement between 

the parties in Round III of IN RE: PERMANENT SURFACE MINING LITIGATION II, Civil Action 

no. 79-1144 (DDC). In the suspension notice, OSM states that:

"This suspension will mean that the concept of adverse physical impact will no longer apply 

and all persons conducting remining operations will be required to use all reasonable 

available spoil in the immediate vicinity of the remining operation to backfill the highwall to 

the maximum extent technically practical." (50 FR 257 (1985))

The Cedar Coal and Miami Springs decisions also appear in OSM's preamble discussion of the 

remining variance under auger mining. The permanent program performance standards for 

backfilling and grading in auger mining operations are codified at 30 CFR Sec. 819.19. Under 

certain conditions, subsection (b) of that regulation grants to permittee a variance from the 

approximate original contour restoration requirement in previously mined areas. The justification 

for the variance is found in the preamble discussion of the final rule:

"[Cedar Coal and Miami Springs] provide that OSM is without authority to require an 

operator to eliminate a preexisting highwall unless the operator's activities will have an 

adverse physical impact on that portion of the highwall." (48 FR 19320 (1983))

This statement is essentially the same as that made by OSM in the preamble discussion of 30 

CFR Secs. 816.106(b) and 817.106(b). The auger mining regulations were upheld by Judge 

Flannery in IN RE: PERMANENT SURFACE MINING REGULATION LITIGATION, SURFACE 

MINING II - ROUND I, CA-79-1144 (1984).

ATTACHMENTS

A. 47 FR 27734-42 (1982).

B. CEDAR COAL CO., 1 IBSMA 145 (1979).

C. MIAMI SPRINGS PROPERTIES, 2 IBSMA 399 (1980).

D. MOUNTAIN ENTERPRISES COAL CO., 3 IBSMA 338 (1981).

E. 48 FR 41720-35 (1983).

F. 50 FR 257 (1985).

G. 48 FR 19319-21 (1983).

H. Excerpt, in IN RE: PERMANENT SURFACE MINING REGULATION LITIGATION, 

SURFACE MINING II - ROUND I, CA-79-1144 (1984).