OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

Research conducted by: S. Michele Manning Page 1 of 6

COALEX SIGNIFICANT ISSUE REPORT - 46

May 31, 1985

TOPIC: ACCESS AND HAUL ROADS

BACKGROUND: Secs. 515(b)(17) and (18) of the Surface Mining Control and Reclamation Act 

(SMCRA) requires all surface coal mining operations to ensure that all access roads be 

constructed, maintained and reclaimed to prevent or control environmental damage. Given 

these statutory requirements, many questions have arisen as to the applicability and meaning of 

these sections.

A COALEX search was conducted of the legislative history, federal regulations and case law to 

determine (1) what federal standards apply to access and haul roads and (2) which roads are to 

be included in the mining area acreage.

I. GENERAL

The possible adverse effects of improperly maintained roads were of concern to Congress, and 

the problem was addressed in every version of SMCRA. One committee noted that access and 

haul roads were a continual and major source of siltation, and that then-current mining practice 

was to abandon roads which had little or no economic or social value after mining. However, the 

committee also recognized that in some circumstances, the roads could continue to serve a 

useful purpose= . (H.R. Rep. No. 95-218, 95th Cong., 1st Sess. 128 (1977))

The road requirements in earlier bills were basically the same as those found in Sec. 

515(b)(17), (18) of SMCRA, with two minor exceptions identified. The 1975 House version and 

the 1977 Senate version contained a specific provision for the retention after mining of certain 

access roads and for an exception from approximate original contour provisions for this 

purpose. (H.R. Rep. No. 94-45, 94th Cong., 1st Sess. 28 (1975). S. Rep. No. 95-128, 95th 

Cong., 1st Sess. 26 (1977))

This language was removed from the final version, but with the stipulation that access roads 

could be left as part of reclamation to approximate original contour. (H.R. Rep. No. 95-218, 95th 

Cong., 1st Sess. 67 (1979))

II. CLASSIFICATION

A. GENERAL

The federal regulations governing road classification have been promulgated twice by OSM, 

but have been struck down both times by the courts. In 1979, OSM issued its first set of 

rules pertaining to access and haul roads. The 1979 classification system divided roads into 

three classes based on the purpose and on the amount of time the road would be in 

existence. Thus, a Class I road was defined as "a road used for the transportation of coal." 

(30 CFR Sec. 701.5 (1979)) A road not used for coal transportation was defined as a Class 
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

Research conducted by: S. Michele Manning Page 2 of 6

II road if used for more than six months, and as a Class III road if used for less than six 

months. (Id.) Various performance standards applied to each class.

The 1979 federal regulations governing road classification and design were challenged in IN 

RE: PERMANENT SURFACE MINING REGULATION LITIGATION II, No. 79-1144, slip op. 

(DDC May 16, 1980). Several groups challenged the classification of roads into three 

categories. They contended that the final regulations differed in scope and substance from 

the proposed regulations, which had contained standards that applied equally to all roads. 

Judge Flannery agreed with the challenges and remanded the road classification 

regulations, noting that the Secretary had given inadequate opportunity to comment on the 

classification system before issuing final regulations. (Id. at 34) While Judge Flannery 

upheld other challenges to the final road regulations, (Id. at 36) the final result was that OSM 

suspended and revised all regulations pertaining to roads. (45 FR 51549 (1980))

Thus, in 1982 and 1983, new road regulations were proposed and finalized. These 

regulations abandoned the three part road classification system of the 1979 regulations and 

instead adopted a two part classification based on the frequency of use and the length of 

time in use. All roads must meet specified performance standards, while additional 

standards are imposed for those which are frequently used.

OSM's 1983 rules break mining roads into two classes: primary and ancillary. A primary 

road is defined as any road which is used for transporting coal or spoil, is frequently used for 

access or other purposes for more than six months, or is to be retained for an approved 

postmining use. An ancillary road is any other road: one that is (1) not used for transporting 

coal or spoil; (2) not to be retained following mining and reclamation; and (3) either used 

infrequently for any length of time or used at any level of frequency for periods of less than 

six months. (30 CFR Sec. 816.150(a); 48 FR 22110, 22116 (1983))

OSM's revised classification system was successfully challenged for a second time in 1984. 

The new classification system found at 30 CFR Sec. 816.150(a) was remanded by Judge 

Flannery for failure to provide adequate notice and opportunity for comment. Judge Flanne= 

ry determined that the 1982 proposed regulations retained the old classification system 

based on frequency of use, while the final version adopted a classification system based on 

the purpose for which the roads are used. (IN RE: PERMANENT SURFACE MINING 

REGULATION LITIGATION II. No. 79-1144 (consolidated), slip op. (DDC October 1, 1984) 

at 26-28). As a result, OSM has again suspended its road classification system pending 

revision. (50 FR 7274 (1985))

B. PERFORMANCE STANDARDS

All roads are required to meet the standards found at 30 CFR Sec. 816.150(b)-(e). These 

standards call for stabilizing exposed surfaces to control or prevent erosion, siltation, and air 

pollution attendant to erosion; prohibiting the use of acidic or toxic substances on road 

surfaces; and applying a minimum static safety factor of 1.3 for all embankments. Adverse 

effects on water are to be minimized by controlling or preventing damage to fish, wildlife or 

their habitat; controlling or preventing additional contributions of suspended solids to stream 

flow or runoff outside the permit area; neither causing nor contributing to violation of 

applicable state or federal water standards; not altering the normal flow of water in 
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

Research conducted by: S. Michele Manning Page 3 of 6

streambeds or drainage channels; and minimizing downstream sedimentation and flooding. 

In addition, the regulations set out minimum design criteria which may be supplemented by 

the local authority. (30 CFR Sec. 816.150 (1983)) Other rules govern the maintenance and 

reclamation of all roads. (Id.)

Primary roads are required to meet the additional standards found at Sec. 816.151. These 

criteria include: (1) certification of design plans by a registered engineer; (2) location on the 

most stable available surfaces; and (3) the prohibition of stream fords unless specifically 

approved by the regulatory authority as temporary routes during construction. In addition, 

stringent standards for drainage control surfacing, and maintenance are specified. (30 CFR 

Sec. 816.151(a)-(e) (1983))

Although challenges were made to the performance standards in the October, 1984, IN RE: 

litigation, Judge Flannery deferred a ruling on them. Flannery noted that "the Secretary's 

defense to the challenges is, in large part, based on the specific requirements for the 

different classifications of roads." Since the road classification system was remanded, the 

court chose to defer consideration of the performance standards challenges until there was 

a full set of regulations available. (IN RE: PERMANENT SURFACE MINING REGULATION 

LITIGATION, No. 79-1144 (consolidated), slip op. at Footnote 17 (DDC October 1, 1984)) 

However, in an amended Order filed December 10, 1984, the court remanded Secs. 

816.150 and 816.151, including the performance standards. Consequently, OSM has 

suspended all road regulations, including the definition of roads found at Sec. 701.5. Thus, 

at this time, OSM intends to propose new regulations which define the term "road" and 

which address the design, construction, use and maintenance of roads used in surface coal 

mining operations. (50 FR 7274 (1985))

III. INCLUSION OR EXEMPTION OF ROADS

A. ROADS WITHIN THE "AFFECTED AREA" FOR PURPOSES OF THE TWO-ACRE 

EXEMPTION.

One issue recently addressed by the federal regulations concerns the method of treating 

access or haul roads for the purposes of the two-acre exemption. OSM's revised regulations 

provide that if a segment of a road is used by more than one operation, the entire area of 

the segment will be included in the "affected area" of each of those operations. This 

attribution is only to determine whether the affected area of the operation exceeds two 

acres; it does not require double bonding or double permitting. (47 FR 33424, 33425 (1982)) 

However, the operator will only be attributed the portion of the road be actually uses; thus, if 

he uses 500 feet of a 2,000 foot road, only that 500 feet will be included in the acreage 

affected.

Several cases have dealt with the question of whether access and haul roads must be 

included in the area deemed "affected" for purposes of the two-acre exemption. Cases 

which have held that roads must be counted include:

RHONDA COAL CO., 4 IBSMA 124 (1982) (affirming as modified RHONDA COAL CO. v 

OSM, Docket No. CH 1-1-R (April 17, 1981)). 
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

Research conducted by: S. Michele Manning Page 4 of 6

The Board held that at least part (1/3) of a 1.2 acre road, used by Rhonda and two other 

operations, should be charged to the company's 1.67 acre site, thus bringing the total area 

affected to over two acres.

GLOBEL BARTLEY, 4 IBSMA 219 (1982) (affirming Docket No. NX 1-64-R (April 16, 1981)).

The Board held that an abandoned access road which was restored and graded was 

properly included in calculating the area affected. It also noted that, although the operator 

owned both the surface and minerals, he was still subject to the requirements of the Act.

Conversely, one ALJ decision held that an access road which serviced two coal companies 

and six dwellings could not be included in the calculation of the affected area. In NUWAY 

COAL CO. v OSM, Docket No. CH 0-282-R (March 11, 1981), an OSM inspector issued 

cessation orders to Nuway Coal and Ashley Lane Coal for failure to maintain an 8,800 foot 

long road and for disturbing more than two acres. ALJ Allen noted that at least 2,000 feet of 

the road serviced six dwellings, while the rest was used by the two coal companies and two 

timber crews. Additionally, OSM presented no evidence that Nuway had reconstructed or 

disturbed in any manner the road which had been existence for 4 or 5 years prior to the 

mining operation.

B. "PUBLIC" ROADS

The revised definition of "affected area" found at 30 CFR Sec. 701.5 established criteria 

designed to alleviate confusion over when a road is considered a "public" road. The affected 

area includes "all areas covered by new or existing roads used to gain access to, or for 

hauling coal to or from surface coal mining and reclamation operations." (30 CFR Sec. 701.5 

(1983)) In order for a road to be excluded from the affected area, it must (1) be designated 

as a public road pursuant to the laws of the jurisdiction in which it is located; (2) be 

maintained with public funds and constructed in a manner similar to other public roads= of 

the same classification within the jurisdiction, and (3) have substantial (more than incidental) 

public use. (Id.) In order to prevent abuse of the exemption through local ordinances to 

accept any coal road as a public road, OSM adopted this definition with the stipulation that 

states with the majority of two-acre operations have laws to limit this type of abuse. (47 FR 

33424, 33430 (1982))

A proposed version of the public road exemption included a requirement that road 

construction standards be as stringent as those found in the applicable state program. OSM 

rejected this proposal, noting that many local roads do not meet the standards of the state 

mining program. Additionally, a paving requirement was rejected because many legitimate 

town and county roads are not paved.

OSM's definition of "affected area" was successfully challenged in the third round of IN RE: 

PERMANENT SURFACE MINING REGULATION LITIGATION, No. 79-1144 (consolidated), 

slip op. (DDC July 15, 1985). Judge Flannery remanded the definition. noting:

"When hauling or access are among many uses made of a road, such as an interstate 

highway, the effect from the mining use is de minimus, or relatively minor, and thus the road 

need not be included . . .[b]ut the Secretary's rule goes far beyond what is called for by Sec. 

701(28) in exempting essentially all public road where public use is more than incidental. 
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

Research conducted by: S. Michele Manning Page 5 of 6

Thus definition does not square with the statutory language and thus this aspect of the 

definition must be remanded as inconsistent with law." (Id.)

Thus, the question of what constitutes a "public" road remains unanswered.

A number of cases involved operations where the access and haul roads were deeded to 

the town or county in which the mine is located. A majority of the cases involving this 

situation have ruled that regardless of the deed, the responsibility for these roads lies with 

the operators. These decisions include:

FETTEROLF MINING SALES v OSM, Docket No. CH 1-95-R (March 31, 1981).

A NOV was issued to Fetterolf for failure to properly surface a preparation plant road. 

The road had been deeded to Somerset Township. but no public funds had been 

used for maintenance since 1976. ALJ Shepherd ruled that while the Township had 

not technically vacated the road, it was not maintained with public funds and was 

therefore within OSM's jurisdiction.

JEWELL SMOKELESS COAL CORP., 4 IBSMA 51 (1982).

Jewell Smokeless was cited for a number of violations pertaining to its access and 

haul roads. The company contended that they were not responsible for maintenance 

of the roads, which had been deeded to the county. The Board noted that while the 

roads were public in name, the financial and operational responsibilities for 

maintaining the road rested with Jewell: "The exemption is based on two conditions: 

that the road be public and that it be maintained by public funds." (Id. at 63) Thus, 

the roads were deemed part of the mining operation.

MUD FORK COAL CORP., 5 IBSMA 44 (1983).

The operator had deeded a 5-6 mile haul road to the county. Approximately $5000 of 

public funds had been spent on the road; however, the Board ruled the road was 

properly included as part of the area affected by the mining operation. "5,000 worth 

of gravel could not go far in maintaining a haul road of such length . . . and regular 

maintenance of the road was substantially lacking." (Id. at 54-55)

TENNESSEE RESOURCES DEVELOPMENT v OSM, Docket No. NX 0-123-P (August 

15, 1983). 

The operator was cited for failure to surface access and haul roads with durable 

material. The road was in existence before mining began, but was permitted and 

bonded. ALJ Torbett rejected the operator's contention that the road was public,

citing inadequate evidence of maintenance with public funds. Judge Torbett noted 

that the public road defense was not available to this operation.

"This defense even if proven is not available where the road in question is permitted 

and bonded . . . not only has the [operator] failed to show that the road in question is 

a public road that is maintained with public funds, but further that as the road is 

permitted and bonded, the [operator] cannot escape the requirement that is [sic] 

maintain the road as part of the permitted area." Id.
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

Research conducted by: S. Michele Manning Page 6 of 6

RAPOCA ENERGY, 89 IBLA 195 (1985). 

The Board noted that while a road may be "public" for other purposes, it must meet 

all the requirements of the Sec. 701.5 definition in order to be exempt under SMCRA. 

In the instant case, the road in question had been established as a public road by the 

county, but the only county maintenance provided consisted of one truckload of 

gravel. While other county roads received similar sporadic maintenance, the Board 

upheld ALJ Torbett's finding that the road in question was maintained by the mining 

company and was therefore not exempt.

C. PIT AND CONSTRUCTION ROADS

Under the Sec. 701.5 definition of roads, pioneer or construction roadways used for part of 

the road construction procedure and roads within the immediate mining pit area are 

specifically excluded. Thus, these roads are not subject to the performance standards 

applicable to primary or ancillary roads. However, since these roads are still considered as 

part of the permit area, they are subject to the other performance standards of Part 816, 

such as the topsoil, backfilling and grading, and revegetation rules. (48 FR 22110, 22117 

(1983))

IV. STATE REGULATIONS

The various state regulations concerning road design, construction and maintenance are 

discussed in COMPARISON REPORT- 48.

ATTACHMENTS:

A. Excerpt, H.R. Rep. No. 95-218, 95th Cong., 1st Sess. (1977).

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

C. Excerpt, S. Rep. No. 95-128, 95th Cong., 1st Sess. (1977).

D. 48 FR 22110 (1983).

E. Excerpt, IN RE: PERMANENT SURFACE MINING REGULATION LITIGATION II, No. 79-

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

F. 50 FR 7274 (1985).

G. Excerpt, IN RE: PERMANENT SURFACE MINING REGULATION LITIGATION II, No. 79-

1144, slip op. (DDC October 1, 1984).

H. 47 FR 33424 (1982).

I. RHONDA COAL CO., 4 IBSMA 124 (1982).

J. GOBEL BARTLEY, 4 IBSMA 219 (1982).

K. NUWAY COAL CO. v OSM, Docket No. CH 0-282-R (March 11, 1981).

L. Excerpt, IN RE: PERMANENT SURFACE MINING REGULATION LITIGATION II, II, No. 79-

1144, slip op. (DDC July 15, 1985).

M. FETTEROLF MINING SALES v OSM, Docket No. CH 1-95-R, (March 31, 1981).

N. JEWELL SMOKELESS COAL CORP., 4 IBSMA 51 (1982).

O. MUD FORK COAL CORP., 5 IBSMA 44 (1983).

P. TENNESSEE RESOURCES DEV. v OSM, Docket No. NX 0-123-P (August 15, 1983).

Q. RAPOCA ENERGY, 89 IBLA 195 (1985).