1. PURPOSE OF THIS REPORT

The Office of Surface Mining's (OSM) Big Stone Gap Field Office (BSGFO), in conjunction with the Virginia Department of Mines, Minerals and Energy, Division of Mined Land Reclamation (DMME/DMLR), has prepared this oversight report on portions of the Virginia surface mining program, which was approved on December 15, 1981, under the Federal Surface Mining Control and Reclamation Act of 1977 (SMCRA). The DMME/DMLR, which administers the regulatory program in Virginia, participated in gathering the data for this report and analysis.

This document addresses mountaintop operations, that is, those surface mines that remove all or a large portion of a coal seam or seams running through the upper fraction of a mountain or ridge. Some States in the Appalachian Region report an increase in mountaintop operations in recent years, both in number and scale, which may help explain the upsurge in the public's interest in such mines. As a result of increased public interest in West Virginia and Kentucky, OSM's Appalachian Regional Coordinating Center required all States in the region to include the study as part of their 1999 oversight activities. Upon conclusion of the Appalachian Regional Studies, OSM will determine if regulatory, policy, or procedural changes are needed either nationally or on a state specific basis. BSGFO and DMME/DMLR included mountaintop operations in the general oversight agreement they signed on November 13, 1998, even though very little public concern had been expressed in Virginia.

Many people categorize all mountaintop operations as "mountaintop removal." However, legally speaking, mountaintop removal is only one of three types of mountaintop operations addressed in this report (see glossary for definitions). The three types are: (1) mountaintop removal with a variance from approximate original contour (AOC), (2) mines which remove all of the coal seam or seams in the upper fraction of a mountain but which return the land to AOC, and (3) steep-slope mines with or without an AOC variance. Under SMCRA, as well as both Federal and State regulations, all mines are required to return the mined land to AOC, unless a variance is granted by the regulatory authority. In Virginia, that authority is the DMME/DMLR.

This report focuses on two kinds of issues:

• First, what standard does DMME/DMLR currently use in evaluating whether a particular postmining land configuration constitutes a return to AOC? This report describes various characteristics of land after mining in terms of elevation changes, creation of valley fills, creation of level sections, and other general descriptive information. The issue is how those characteristics, either individually or in combination, are used in determining if AOC has been achieved.
• Second, has DMME/DMLR required appropriate postmining land uses when it grants a waiver from AOC requirements?

While mountaintop removal and steep slope mining in Virginia share some of the characteristics of mining practices in the neighboring states of West Virginia and Kentucky, the scale of such operations in Virginia is much smaller. Mountaintop removal sites account for less than one percent of the permits and three percent of the total permitted acreage in Virginia, while permits with variances for steep slope mining account for four and a half percent of the permits and four percent of the total permitted acreage (Charts A-1 and A-2, pages A-15 and A-16). Overall our study found that Virginia is successfully reclaiming mine sites and is limiting the amount of material disposed of in excess spoil fills.

The weaknesses that we found deal with the administration of various aspects of the Virginia program and not with the on-the-ground reclamation. In general, OSM agrees that reforms, as described below, which have been voluntarily initiated by DMME/DMLR to address the weaknesses are appropriate. OSM also believes that these reforms should be applied prospectively, and that existing mining operations, some of which were initially permitted many years ago, should be altered only to the extent practicable. DMME/DMLR has agreed to review all existing permits with variances and apply these reforms prospectively.

Based on an analysis of the information gathered during the oversight process, we developed the following conclusions, actions, and recommendations:

• An examination of all mining in Virginia shows that industry usually returns mine sites to AOC rather than obtaining an AOC variance (See Chart A-1, page A-15). Our study also shows that while Virginia has no written guidance for AOC, practical application of the principles has resulted in both variance and AOC sites being returned to a configuration more closely resembling AOC. The premining topography on most permits in our sample have some naturally occurring flat or gently rolling areas in addition to the steep slopes. Restoration to AOC or near AOC reestablishes the flat or rolling areas for implementing the postmining land use.
• Seventy percent of the permits in our sample proposed to place less material in fills than the predicted "swell" generated during mining (Table A-5, page A-23). Due to the high percentage of remining sites in Virginia (80 percent of our sample), permittees' maintain most (83 percent) of the overburden generated during mining on the mine bench or on previously mined lands included within the permitted area. Because of the large amount of overburden retained on the mine benches and the overall configuration (including an average elevation change of -31' for AOC sites and -26' for variance sites, see Table A-4 on page A-21) of the resulting land, one must question whether the majority of the sites in our study required a variance from approximate original contour restoration in the first place.
• A database tracking system for mountaintop removal operations and associated waivers is not required by State or Federal law. Nonetheless, DMME/DMLR is changing to a new data base, that is currently being developed, to ensure that the new system contains the most accurate data possible. Both OSM and DMME/DMLR learned during this review that the practice of entering data at the time the application is received rather than when the permit is issued has caused discrepancies between the data and actual field conditions. DMME/DMLR has completed its inventory of all current surface mining permits and has clearly identified the sites that should be classified as "mountaintop removal" and/or "steep slope variance operations." A copy of the inventory is included in Appendix IV.
• The oversight evaluation found that one mountaintop removal permit and one steep slope permit have been issued with postmining land uses (forestry and fish and wildlife habitat) not authorized in the approved State program. To prevent this from recurring, DMLR revised its findings document to list the allowable land uses. During the next quarter, DMME/DMLR will examine all current permits with a mountaintop removal or steep slope variance to determine if similar situations exist and will take action to correct similar problems.
• Virginia regulations require numerous findings before a mountaintop removal or steep slope variance can be granted. Most of the mountaintop removal sites have agricultural postmining land uses. To satisfy the requirement of documenting the existence of a need and a market for the designated postmining land use, DMME/DMLR accepts letters in which the owners of the affected land request the postmining land use. DMLR is changing this practice and is currently developing guidance to ensure compliance with this section.
• Prior to issuing a steep slope variance, DMME/DMLR must find, among many things, that there will be watershed improvement. In our sample, this finding was not clearly identifiable. However, DMME/DMLR explained that if it approves a permit it has made a favorable finding. DMME/DMLR staff have already started developing procedures to better document the written findings. We found the other required items documented in each permit file.

OSM has defined the mining terms listed below in an effort to improve the general understanding of mining practices within the State of Virginia. These terms are used throughout this report. OSM has taken some of the definitions from the Virginia Coal Surface Mining Control and Reclamation Act (VCSMCRA), others from the Federal Surface Mining Control and Reclamation Act of 1977 (SMCRA), and others from State (VCSMRR) and/or Federal regulations. Furthermore, OSM has developed some definitions solely for the purpose of the report. When it is not otherwise clear, the source of each definition is identified in the brackets.

State program:

Approved State program.-The Virginia surface coal-mining program approved under SMCRA that consists of the Virginia surface mining law, regulations, policies, and procedures that OSM approved initially on December 15, 1981. Subsequent amendments and actions concerning the approved State program are set forth in 30 C.F.R.

Oversight.-The term describes OSM's monitoring of a State's implementation of its approved program. [General term described in 30 C.F.R. Part 732.]

Primacy.-The term used to describe the delegation of primary authority by OSM to a State in administering its surface mining program. Virginia obtained primacy on December 15, 1981, with OSM's conditional approval of its permanent regulatory program. [General term described in 30 C.F.R. Part 732.]

Approximate original contour (AOC):

AOC.-The 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. All mined areas are to be returned to AOC unless they receive a variance. [Term defined in section 4 VAC-25-130-700.5 of VCSMRR and subsection 701(2) of SMCRA.]

AOC variance.-A regulatory authority may grant a variance or waiver from the requirement to restore a site to AOC if certain specified conditions are satisfied. State and Federal law provide for the following types of AOC variances: mountaintop removal, steep-slope, thick overburden, thin overburden, and remined areas. This report concentrates only on mountaintop removal and steep-slope AOC variances.

A mountaintop removal variance can be granted by the regulatory authority only if the entire coal seam or seams running through the upper fraction of the hill, ridge, or mountain is removed, and a level plateau or a gently rolling contour is created with no highwalls remaining. The site granted such a variance must be capable of supporting certain postmining land uses.

A steep-slope AOC variance may be granted by the regulatory authority if (1) the proposed mining is going to occur in a steep-slope area, (2) the watershed control of the area will be improved by granting such a variance, and (3) the landowner requests in writing that the variance be granted in order that the land after reclamation will be suitable for an industrial, commercial, residential, or public postmining land use (including recreational facilities). [Section 4 VAC-25-130-785.16 of the VCSMRR and subsections 515(c) and (e) of SMCRA]

Types of mining applicable to this report:

Area mining.- A mining operation where, unless the operation is located in a steep-slope area and a steep-slope AOC variance has been granted, all disturbed areas are restored to (1) AOC and (2) the site is capable of supporting the uses that existed prior to mining or an equal or better use.

An area-mining operation may remove multiple seams of coal in the upper reaches of a mountain just like a mountaintop removal operation; however, this type of operation cannot be classified as a mountaintop removal operation for two reasons. First, the site may be restored to AOC; second, the entire coal seam or seams may not be removed. [Section 4 VAC 25-130-700.5 of the VCSMRR and OSM/DMME/DMLR oversight work plan; definition modified for use in this report]

Contour mining.- Surface-mining technique that makes a cut into a hillside, creating a level bench with a highwall. A contour-mined area must be restored to AOC, including elimination of the highwall, unless the mining is conducted on a steep slope and a variance from AOC has been approved. In either situation, the highwall must be eliminated. The AOC variance would have to meet the requirements of a steep-slope variance.

Mountaintop operations.- Is a generic term used by the industry and public to describe the type of surface mining that removes all or a large portion of a coal seam or seams running through the upper fraction of a mountain or ridge. In common usage it includes: (1) mountaintop removal with a variance from AOC, (2) mines which remove all of the coal seam or seams in the upper fraction of a mountain but which return the land to AOC, and (3) steep-slope mines with or without an AOC variance.

Mountaintop removal operation.- Type of surface-mining operation that (1) has been granted a variance from AOC and (2) extracts an entire coal seam or seams running through the upper fraction of a mountain, ridge, or hill. Coal extraction must be accomplished by removing all of the overburden and creating a level plateau or a gently rolling contour that both has no highwalls remaining and is capable of supporting certain postmining land uses. The allowable postmining land uses for mountaintop removal operations are industrial, commercial, woodland, agricultural, residential, or public facility (including recreational facilities) use. [Section 4 VAC 25-130-785.14 of the VCSMRR and Subsection 515(c) of SMCRA]

Steep-slope mining. -Type of surface-mining operation where the natural slope of the land within the proposed permit area exceeds an average of 20 degrees. In Virginia, those portions of a permit area classified as "steep slope" may obtain a variance from AOC if the permit application demonstrates that (1) the postmining use of the mined land will be equal to or better than its premining use, (2) the watershed affected by mining will be improved, and (3) mining will comply with all applicable provisions of the approved State program. Such operations could qualify as area, contour, or mountaintop mines, as further defined in this glossary. [Section 4 VAC 25-130-785.16 of the VCSMRR and 30 C.F.R. section 785.16]

Mining-related terms:

Durable rock.-Naturally formed aggregates that will not slake in water or degrade to soil material. State and Federal law provide that durable-rock fills must consist of at least 80 percent durable rock. [Sections 4 VAC 25-130-816.73 and 817.73 of the VCSMRR and 30 C.F.R. sections 816 and 817.73]

Excess spoil. -Overburden material that is disposed of in a location other than the mine pit and that is not needed to achieve AOC. [Section 4 VAC 25-130-700.5 of the VCSMRR and 30 C.F.R. section 701.5]

Excess-spoil fills. -Fill structures that are created by the placement of excess spoil in valleys, on hillsides, or on preexisting benches. The State program contains regulations for constructing valley or head-of-hollow, preexisting bench, and durable-rock fills. Although most excess-spoil fills are commonly referred to as valley fills, most mountaintop removal and steep-slope mining operations today involve the construction of durable-rock fills. [Sections 4 VAC 25-130-816.71 and 817.71 of the VCSMRR and 30 C.F.R. sections 816 and 817.71]

Overburden. -Consolidated or unconsolidated material of any type, excluding topsoil, which overlies a mineral deposit. [Section 4 VAC 25-130-700.5 of the VCSMRR]

Premining/postmining land use.-The primary uses of the land before and after mining. After mining, land is generally required to be returned to its premining use. As provided by section 4 VAC 25-130-816.133 and section 817.133 of the VCSMRR a site may be returned to an alternative postmining land use if certain requirements are satisfied. Permits involving mountaintop removal or steep-slope mining operations with variances from AOC may be issued by the regulatory authority only if they meet certain specified postmining land use requirements as described in the approved State program. [ Section 4 VAC 25-130-700.5]

Relief.-Difference in elevation between the highest mountaintop, ridge, or hill and the lowest valley within a permit area. [Derived, for purposes of this report, from Bureau of Mines, Dictionary of Mining, Mineral, and Related Terms: U.S. Government Printing Office, 1968.]

Required findings.-Specific findings that a regulatory authority must make prior to granting a mountaintop removal permit or steep-slope AOC variance. [Section 4 VAC 25-130-785.14 (c) and subsections 515(c) and (e) of SMCRA]

Steep slope.-Any slope of more than 20 degrees or such lesser slope as may be designated by the regulatory authority after consideration of soil, climate, and other characteristics of a region or state. [Section 4 VAC 25-130-701.5 and 30 C.F.R. section 701.5]

Swell.-The tendency of soils, on being removed from their natural, compacted beds, to increase or swell owing to the creation of voids or spaces between soil particles. The volumetric increase, normally expressed as a percentage, that occurs as the consequence of changing undisturbed overburden (bank) into loose (excavated) material. [Derived, for purposes of this report, from Bureau of Mines, Dictionary of Mining, Mineral, and Related Terms: U.S. Government Printing Office, 1968.]

The Federal Surface Mining Control and Reclamation Act of 1977 (SMCRA) establishes a program of cooperative federalism that allows states such as Virginia to enact and administer their own regulatory programs within limits established by Federal minimum standards, with oversight authority vested in the Department of the Interior. See H.R. Rep. 218, 95th Cong., 1st Sess. at 57 (1977), reprinted in 1977 U.S. Code Cong. & Admin. News 593, 595; Hodel v. Virginia Surface Mining and Reclamation Association, 452 U.S. 264, 289 (1981). In SMCRA's findings section, Congress provides the following explanation for its decision to offer each state "primary jurisdiction," or "primacy," in this area:

because of the diversity in terrain, climate, biologic, chemical and other physical conditions in areas subject to mining operations, the primary governmental responsibility for developing, authorizing, issuing, and enforcing regulations for surface mining and reclamation operations subject to this chapter should rest with the States[.]

30 U.S.C. § 1201(f).

Primacy does not, however, grant a state absolute authority to regulate surface coal mining without any Federal involvement. Section 503 of SMCRA requires that state rules and regulations be "consistent with regulations issued by the Secretary pursuant to [SMCRA]."

30 U.S.C. § 1253(a)(7). Further, Section 505(b) of SMCRA provides that "[a]ny provision of any State law or regulation . . . which provides for more stringent land use and environmental controls and regulations" than does SMCRA or the Federal rules "shall not be construed to be inconsistent" with SMCRA. 30 U.S.C. § 1255(b).

Because Virginia has a state program approved under Section 503 of SMCRA, see 30 C.F.R. Part 946, its actions must be evaluated for consistency with that program. At the same time, however, if it becomes apparent that some aspect of the approved program is inconsistent with SMCRA, it is incumbent upon the Office of Surface Mining (OSM) to address that situation. If, for example, State program provisions are found to be less effective than the Federal requirements, OSM can require the State to amend its program in accordance with 30 C.F.R. § 732.17. In this report, OSM has evaluated the way in which the Virginia Department of Mines, Minerals and Energy, Division of Mined Land Reclamation (DMME/DMLR) administers the requirements relating to approximate original contour (AOC) and postmining land uses associated with mountaintop removal and steep-slope AOC variances for consistency with its approved State program. OSM has also reviewed the State program requirements to determine if they are consistent with Federal requirements.

This report focuses on two issues:

• First, what standard does DMME/DMLR use in evaluating whether a particular postmining land configuration constitutes a return to AOC? This report describes various characteristics of land after mining in terms of elevation changes, creation of valley fills, creation of level sections, and other general descriptive information. The issue is how any of those characteristics, either individually or in combination, are used in determining if AOC has been achieved.
• Second, has DMME/DMLR required appropriate postmining land uses when it grants a waiver from AOC requirements?

In order to evaluate DMME/DMLR's administration of requirements related to AOC and postmining land use and to determine whether Virginia requirements are consistent with SMCRA, the team reviewed 10 permits, 7 of which had AOC variances. The team focused its evaluation on (1) gathering data that might be useful in understanding how AOC is determined in Virginia and determining whether or not DMME/DMLR should modify its method for determining AOC, and (2) determining the appropriateness of the postmining land use when an AOC variance was granted by the State. Some permits involved disturbances initiated early in the permanent program; others involved recent disturbances. The purpose of evaluating older permits was to gain insight into the actual forms of land created after mining and to see if any trends have been established over the years.

In order to review land configuration after reclamation and to evaluate the amount of success in establishing, and the appropriateness of, postmining land uses, the review included examination of two permits in which the bonds have already been released. The team also examined the database the State uses to catalogue mining operations in order to see if it could be used to accurately identify the number of operations fitting the parameters of this study.

2. FEDERAL REQUIREMENTS

a. General AOC Requirements

1. Statute

Section 701(2) of SMCRA defines "approximate original contour" to mean

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 Section 515(b)(8) of this Act.

30 U.S.C. § 1291(2).

Section 515 of SMCRA sets forth environmental protection performance standards applicable to surface coal mining operations. 30 U.S.C. § 1265. Among these standards is the requirement to return the land to AOC--pursuant to Subsection 515(b)(3), mine operators must "backfill, compact . . ., and grade in order to restore the approximate original contour of the land with all highwalls, spoil piles, and depressions eliminated." 30 U.S.C. § 1265(b)(3).

The legislative history of SMCRA shows that Congress intended to provide considerable flexibility with respect to what surface configuration would satisfy the statutory requirement for AOC restoration. The Committee Report on the House version of SMCRA, which contained the definition of AOC that was enacted into law, stated:

H.R. 2 requires that a mine site be regraded to AOC. Moreover, the 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. The bill's critics have alleged, to the contrary, that the term "approximate original contour" imposes an overly rigid and impractical requirement. It should be emphasized, therefore, that a reasonable interpretation of H.R. 2 cannot justify the assertion that the bill requires either the impossible task of restoration of the original contour or the useless act of digging a pit to obtain fill material to achieve full restoration of the original topography.

H.R. Rep. No. 95-218, at 96 (1977).

Since the enactment of SMCRA, OSM has recognized that, in primacy States, the State regulatory authority has the primary responsibility for interpreting what constitutes AOC at a given mine site during the permitting process. See 30 U.S.C. § 1201(f), quoted supra in the Introduction.

An important AOC issue, however, is the extent to which a postmining change in land elevation, slope, relief, or configuration constitutes a departure from AOC. Our research into SMCRA's legislative history has indicated that the primary element of AOC is configuration or shape. Although the House Committee Report mentioned both configuration and elevation, it gave primary emphasis to configuration:

As defined in the bill, approximate original contour means:

That surface configuration achieved by backfilling and grading of the mine 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 draining pattern of the surrounding terrain, with all highwalls and spoil piles eliminated * * *.

The term contour is defined by the dictionary as "the outline of a figure or body, with a line or lines representing such an outline." The contour of ground is similarly defined as the outline of the surface of the ground with respect to its undulations. These two definitions primarily refer to the shape or configuration of a surface. In addition, with respect to mapping, contour takes on an additional meaning; the imaginary line connecting the points on the land surface that have the same elevation and the line representing such line on a map or chart. In order to understand this concept it is necessary to distinguish between the two dimensions of elevation and configuration.

Id. at 97.

The Committee went on to give a number of examples of what the Committee meant by AOC. Id. at 97-103. In each of these, the emphasis was on configuration as the primary element.⁽¹⁾

Our examination of the legislative history of SMCRA has disclosed no statements indicating that a change in elevation, by itself, constitutes a departure from AOC. Instead, on several occasions during the debate on SMCRA and its precursors, the bill's sponsors gave assurances that the AOC requirement did not mandate a return to original elevation. Usually, these statements were made in response to charges that a return to AOC, as required by SMCRA, would be impossible. For example, during the floor debate on H.R. 25, a direct precursor of SMCRA, Representative Clausen of California, one of the principal sponsors of the bill, emphasized that AOC did not mandate a return to original elevation:

In addition, the bill requires that lands be returned to the approximate original contour and requires they be covered by vegetation. The land must come as close to resembling its premining appearance as possible. It is important to point out that this requirement is not intended to require restoration of mined lands to their original elevation, but to a similar configuration.

121 Cong. Rec. 6676, 6686 (March 14, 1975)(floor debate on H.R. 25) (emphasis added).

During the same debate, Congressman Ruppe of Michigan, who played a key role in SMCRA's enactment, also emphasized that it did not mandate a return to original elevation:

However, we plainly realize that the lands which will be mined vary in terms of their physical characteristics, and as a result we have provided rational flexibility. We do not mandate that the mined land be returned to exactly the same shape as it was prior to mining. What the committee has obliged operators to do is to return the land to its "approximate original contour." It should be emphasized here once again, as I have attempted to do many times in the past, that "approximate original contour" does not mean that the land must be returned to original elevation. This would be patently ridiculous in the case of a thick seam of coal covered by a relatively thin stratum of overburden. When this coal is mined, it will create a depression that could not be returned to the original elevation without hauling an enormous amount of materials from some other location, thereby creating a similar depression elsewhere. Therefore, the committee bill requires that the coal operator regrade the mined area inside and around the perimeter of the mined area so that the depression blends into the surrounding terrain, and that within the mined area, the surface of the land "closely resembles" its premining configuration.

Id. at 6888. See also Additional Views of Cong. Ruppe, Clausen, and Lagomarsino, H.R. Rep. No. 94-45, at 152 (94th Congress, 1st Sess. 1975) ("First, approximate original contour as it applies to thick seam area mining in the West is not intended to require that the mined site be returned to its original elevation. Original elevation simply often cannot be obtained. . . . It must be emphasized that the requirement to return to approximate original contour does not necessarily mandate the attainment of original elevation."); 120 Cong. Rec. 23650, 23659 (July 17, 1974) (floor debate on H.R. 11500, another SMCRA precursor); ("Now approximate original contour does not mean original elevation or that every bump on the landscape must be restored.").

While this legislative history is helpful, much of it focuses on thin and thick overburden situations, rather than mountaintop removal and steep-slope mining operations, and it does not clearly state what a regulatory authority must consider when making AOC determinations. Subsection 515(b)(3) of SMCRA specifically exempts thin and thick overburden situations from the requirement to restore the AOC.

In its national regulations and in approving individual State programs, OSM adopted the statutory definition of AOC essentially unchanged. In the development of national regulations, the only discussion of elevation change in relation to AOC is in the preamble to the rules regarding thick or thin overburden. The permanent program rules promulgated in 1979 defined thin overburden as overburden where the final thickness is less than 0.8 times the initial thickness and thick overburden as overburden where the final thickness is greater than 1.2 times the initial thickness. The preamble stated:

The definition of approximate original contour states that the reclaimed area should closely resemble the general surface configuration of the land prior to mining. OSM interprets this to mean that the approximate original contour, or configuration, of the premining land is intended, and minor changes in elevation are anticipated.

44 Fed. Reg. 15231 (March 13, 1979).

Thus, an elevation change of plus or minus 20 percent was accepted as AOC in those rules.

In 1983, those numerical limits were deleted from the thick and thin overburden rules. See 48 Fed. Reg. 23356, 23365 (May 24, 1983). In 1988, the D.C. Circuit upheld the remand of those rule changes because the Secretary had failed to explain his reasons for removing the numerical limits. National Wildlife Federation v. Hodel, 839 F.2d 694, 734 (D.C. Cir. 1988). In 1991, OSM again published rules addressing thick and thin overburden. The preamble contains cross sections showing elevation changes of greater than plus or minus 20 percent that would still be considered AOC. With this rule OSM declined to set a numerical limit and asserted that the issue was best left to the state regulatory authority. See 56 Fed. Reg. 65629-95633 (December 17, 1991).

In 1987, OSM issued Directive INE-26 (see Appendix II) to provide guidance to OSM field personnel in evaluating AOC issues during oversight. The Directive makes three points with respect to AOC. First, because both the permittee and the regulatory authority (as well as other interested parties) need a clear understanding prior to mining of what the final postmining topography will be, the anticipated postmining topography must be determined in the permitting process to enable a determination of whether AOC will be achieved. Second, inspections should ensure that the approved postmining topography is being reasonably achieved, including general surface configuration, drainage, and elimination of highwalls and spoil piles. Third, in oversight, considerable deference should be given to prior decisions by the State, particularly where the final grade work has been done. In recognition of the emphasis that the 1987 Directive places on the role of the permitting process in applying AOC requirements to specific operations, the current review looked to see what DMME/DMLR was accepting as meeting AOC requirements in the permitting process. (See page A-18 for further discussion of the findings.)

b. Federal Requirements Relating to Mountaintop-

Removal Mining Operations

Section 515 of SMCRA contains specific performance standards for mountaintop removal mining. Subsection 515(c) permits an exception to the AOC restoration requirement for mountaintop removal operations which, after reclamation, would be capable of supporting specific postmining land uses. In such operations, instead of restoring the site to approximate original contour, the operator removes the entire coal seam or seams running through the upper fraction of a mountain, ridge, or hill, by removing all of the overburden and creating a level plateau or a gently rolling contour with no highwalls remaining. 30 U.S.C. § 1265(c). Subsection 515(c)(3) lists the allowable postmining land uses: "industrial, commercial, agricultural, residential or public facility (including recreational facilities) use[s]." 30 U.S.C. § 1265(c)(3). In demonstrating the feasibility and practicability of the proposed postmining land use, the applicant must include specific plans and show that the use will be:

( i) compatible with adjacent land uses;

(ii) obtainable according to data regarding expected need and market;

(iii) assured of investment in necessary public facilities;

(iv) supported by commitments from public agencies where appropriate;

(v) practicable with respect to private financial capability for completion of the proposed use;

(vi) planned pursuant to a schedule attached to the reclamation plan so as to integrate the mining operation and reclamation with the postmining land use; and

(vii) designed by a registered engineer in conformance with professional standards established to assure the stability, drainage, and configuration necessary for the intended use of the site.

30 U.S.C. § 1265(c)(3)(B).

Federal regulations pertaining to mountaintop removal operations are found at 30 C.F.R.

§ 785.14 and Part 824. The regulations generally track the language of SMCRA, but do clarify the applicable requirements in the following respects:

• A requirement for compliance with the alternative postmining land use provisions of 30 C.F.R. § 816.133(a) through (c) [30 C.F.R. § 824.11(a)(4)];
• A specification that final graded slopes on the plateau portion of the operation not exceed 1v:5h (20%) [30 C.F.R. § 824.11(a)(7)];
• A requirement that plateau outslopes attain a minimum static safety factor of 1.5 or that they not exceed 1v:2h (50%) [30 C.F.R. § 824.11(a)(7)];
• A requirement that the resulting level or gently rolling contour be graded to drain inward from the outslope [30 C.F.R. § 824.11(a)(8)]; and
• A clarification that the prohibition on damage to natural watercourses applies only to watercourses below the lowest coal seam to be mined [30 C.F.R.

§ 824.11(a)(9)].

c. Federal Requirements Pertaining to Steep-Slope Mining Operations

Subsection 515(d) of SMCRA specifies additional requirements for "steep-slope surface coal mining." The term "steep slope" is defined at Subsection 515(d)(4) as "any slope above twenty degrees or such lesser slope as may be defined by the regulatory authority after consideration of soil, climate, and other characteristics of a region or State." 30 U.S.C. § 1265(d)(4). When mining on such slopes, the operator may not place spoil, abandoned or disabled equipment, debris or waste materials downslope below the bench or mining cut; the operator may not disturb the land above the top of the highwall unless it is found that such disturbance will facilitate compliance with the Act's environmental protection standards; and the operator must completely backfill with spoil material to "cover completely the highwall and return the site to approximate original contour . . ." 30 U.S.C. § 1265(d).

As provided in Subsections 515(e)(1) and (e)(2) of SMCRA, a variance from AOC for a steep-slope mining operation is allowed if the owner of the property requests it in writing as part of the permit application; the watershed control of the area is improved; the potential use of the affected land is deemed to constitute an "equal or better economic or public use;" and the proposed use is designed and certified by a qualified registered professional engineer in conformance with professional standards established to assure the stability, drainage, and configuration necessary for the intended use of the site. 30 U.S.C. § 1265(e)(1) and (e)(2). Subsection 515(e)(2) further specifies that these variances from AOC must be for operations that will render the land suitable, after reclamation, "for an industrial, commercial, residential or public use (including recreation facilities)." 30 U.S.C. § 1265(e)(2).

The Federal regulations relating to steep-slope mining operations are found at 30 C.F.R.

§§ 785.15, 785.16, 816.107/817.107, and 816.133(d)/817.133(d). The regulations generally track the language of SMCRA, but do clarify the applicable requirements for steep-slope mining operations receiving a variance from AOC requirements:

• Steep-slope mining operations receiving a variance from AOC must comply with the alternative postmining land use provisions of 30 C.F.R. §§ 816.133(c) and (d) and 817.133(c) and (d) [30 C.F.R. §785.16(a)(2)];
• The watershed of lands within the proposed permit and adjacent areas will be improved by the steep-slope mining variance operation if the amount of total suspended solids or other pollutants discharged into surface or ground waters will be reduced or if flood hazards within the watershed will be diminished by a reduction in peak flow discharges; the total volume of flow will not vary in a way that adversely affects surface waters or any existing planned use of surface or ground water; and the appropriate State environmental agency approves the plan [30 C.F.R. § 785.16(a)(3)];
• All highwalls must be completely eliminated with spoil material in a manner which results in a static safety factor of at least 1.3 [30 C.F.R. §§ 816.133(d)(7) and 817.133(d)(7)]; and
• Only that amount of spoil necessary to achieve the postmining land use and ensure the stability of the retained spoil may be placed off the mine bench [C.F.R. §§ 816.133(d)(8) and 817.133(d)(8)].

Virginia law requires, with certain exceptions, that mined lands be returned to AOC. Subsection 45.1-229 of the Virginia Coal Surface Mining Control and Reclamation Act (VCSMCRA) essentially repeats the SMCRA definition of AOC. The exceptions, i.e., formal variances from AOC, are addressed in Subsection 45.1-242(C) of the VCSMCRA. Table A-1 contains a summary of the State's requirements relating to AOC and the variances that are allowed under the Virginia approved program.

During the permitting process, applicants must identify the premining and postmining topography and indicate whether they are requesting a variance from AOC. Depending on the mining plan, operators in steep-slope areas (greater than 20 degrees) can obtain either a permit for mountaintop removal mining, or a permit containing a steep-slope AOC variance.

Subsection 4 VAC 25-130-785.14 of the Virginia Coal Surface Mining Reclamation Regulations (VCSMRR) provides that an AOC variance may be granted for the surface mining of coal, "where the mining operation will remove the entire coal seam or seams running through the upper fraction of a mountain, ridge, or hill . . . by removing all of the overburden and creating a level plateau or a gently rolling contour with no highwalls remaining and capable of supporting [certain] postmining uses . . ." (emphasis added).

TABLE A-1

As illustrated in table A-2, the allowable postmining land uses for mountaintop removal operations approved under the Virginia program include:

• industrial,

• commercial,

• agricultural,

• residential, or

• public facility (including recreational facilities.)

Pursuant to § 4 VAC 130-785.14(c) of the VCSMCRR, the State may grant a permit with a mountaintop removal mining variance only after finding the following:

• the proposed postmining land use of the lands to be affected will be an industrial, commercial, agricultural, residential, or public facility (including recreational facilities) use:
• the proposed postmining land use constitutes an "equal or better use;"
• the proposed use will be compatible with adjacent land uses and existing land use plans;
• local, State, and Federal agencies have been provided an opportunity to comment on the proposed land use;
• the applicant demonstrates compliance with the requirements for acceptable alternative postmining land uses of Paragraphs (a) through (c) of § 4 VAC 25-130-816.133; and
• the application contains specific plans and assurances that the proposed use will be (1) compatible with adjacent land uses; (2) obtainable according to data regarding expected need and market; (3) assured of investment in necessary public facilities; (4) supported by commitments from public agencies where appropriate; (5) practicable with respect to financing and completing the proposed use; (6) planned pursuant to a schedule that will integrate the mining operation and reclamation with the postmining land use; and (7) designed by an approved person to assure the stability, drainage, and configuration necessary for the intended use of the site.

c. State Requirements Pertaining to Steep-Slope Mining Operations

Subsections 4 VAC 25-130-785.15 and 16, and 4 VAC 25-130-816/817.107 of the VCSMCRR contain requirements governing steep-slope mining. The term "steep slope" is defined at § 4 VAC 25-130-700.5 as "any slope of more than 20 degrees or such lesser slope as may be designated by the division after consideration of soil, climate, and other characteristics of a region or State." When mining on such slopes, no spoil, abandoned or disabled equipment, debris or waste materials may be placed on the downslope; the operator may not disturb the land above the top of the highwall unless it finds that such disturbance will facilitate compliance with the environmental protection standards of the subchapter; and woody materials may not be placed in the backfill unless it will not affect stability of the backfill. Virginia's program also requires that highwalls be eliminated and the site be returned to AOC unless a variance is granted, or previously mined lands are involved and insufficient spoil exists to return the site to AOC.

State regulations at § 4 VAC 25-130-785.16 provides that DMME/DMLR may issue a permit with a variance from AOC for surface mining on slopes greater than 20 degrees when the watershed of the area is improved and all backfilling and grading is completed with all highwalls eliminated. The State may grant a variance from the requirements for restoring mined lands in steep-slope areas to AOC only if:

• the permit area is located on slopes that exceed an average of 20 degrees;
• all highwalls are completely backfilled in a manner which results in a static safety factor of 1.3;

• only that amount of spoil necessary to achieve the postmining land use and ensure the stability of the retained spoil may be placed off the mine bench;
• the watershed of the permit area and adjacent areas will be improved by reducing the discharge of pollutants to ground and surface waters and by reducing flood hazards;
• appropriate Federal, State, and local governmental agencies have been provided an opportunity to comment on the proposed postmining land use and have deemed it to be "equal or better economic or public use;"
• the proposed use is designed and certified by a registered professional engineer to assure stability, drainage, and configuration necessary for the intended use of the site; and
• the landowner has requested in writing that a variance be granted to achieve the

proposed alternative postmining land use.

Beginning in 1997, the public and media began to focus increasing attention on "mountaintop removal operations" in West Virginia and Kentucky. Commonly understood, the term "mountaintop removal" refers to any operation that removes all or part of the top of a mountain or ridge and places the overburden or excess spoil resulting from the removal into fills. This common usage can lead to confusion because, as defined in SMCRA, the term "mountaintop removal" refers only to one specific type of mining operations conducted in mountainous areas. This report will use the broader term "mountaintop operations" to refer generally to mining operations that remove all or part of a mountain or ridge. This report will use the narrower term "mountaintop removal (AOC variance) operations" in its legal SMCRA sense (see category #1 below).

Three types of mining practices are included in the term "mountaintop operations" for this evaluation. These types are:

• "Mountaintop removal (AOC variance) operations" - Mines which remove all of the coal seam or seams in the upper fraction of a mountain or ridge and request a mountaintop removal variance from AOC restoration requirements. Only this kind of operation constitutes a mountaintop removal mine as defined in the State and Federal regulations.

Mines (area mines) which remove all of the coal seam or seams in the upper fraction of a mountain or ridge and return the land to AOC.

• Mines in steep slop areas (slopes exceeding 20 degree) that do not remove all of the coal seam in the upper fraction of a mountain or ridge and may or may not have a variance from AOC.

For ease of reading we will refer to all mountaintop removal mining with an AOC variance as mountaintop removal operations and similar sites without an AOC variance as area mines. For the remainder of this report, steep slope mining identifies sites in topography with slopes greater than 20 degrees which may or may not have an AOC variance and the term will be used with other descriptive terms (e.g., steep slope mines with/without an AOC variance).

Notwithstanding regulatory definitions, OSM recognizes that the public's concern in other states is not confined to any one of these mining scenarios, but encompasses all three. Accordingly, this report addresses all three types of mines.

Chart A-1(Page 15) shows the number and types of mining operations currently occurring in Virginia. Chart A-2 (Page 16) shows the current permitted acreage by mining and/or variance type. Comparatively these charts show the number of ongoing mountaintop removal (6); surface mines with steep slope AOC variances (5); underground mines with steep slope AOC variance (22); and other steep slope AOC variance mining operations (5), such as preparation plants and fill areas, in relation to all mining operations (681). As can be seen from these charts mountaintop removal operations account for less than one percent of all mining and three percent of the permitted acreage. Steep slope mining sites with AOC variances account for four and a half percent of all mining permits and four percent of the total permitted acreage. Because most variance areas do not encompass the entire permit, our study found that the variances applied on average to about half of the individual permit or about four percent of the all of the permitted acreage in Virginia.

a. Site Selection

OSM and DMME/DMLR established a team to conduct this evaluation. OSM team members reviewed a list of sites provided by DMME/DMLR and selected a sample. Appendix IV contains a copy of the State listings from which the selections were made. The team selected ten site from the following categories in order to evaluate the three types of mining practices mentioned above:

• three (of six) mountaintop removal operations;
• two (of thirty-two) steep slope mines with AOC variances;
• three (of unknown total) steep slope mines restored to AOC; and
• two (of unknown total) mountaintop removal permits in which the bond has been released.

Table A-4 ( Page A-21) lists the sites selected for review by permit number and mining category.

b. Work Plan

The team members conducted both permit reviews and field investigations. The team also analyzed the statistics and prepared this report.

In evaluating operations which had been granted mountaintop removal or steep slope AOC variances, the team reviewed permit documents to determine whether or not permit applicants had satisfied all State program requirements relating to mountaintop removal or AOC-variance approvals, and postmining land use changes. In evaluating operations where the site was to be returned to AOC, the team reviewed permit files to determine how the approved mining maps and plans documented compliance with State AOC variance provisions and, if applicable, with alternative postmining land use requirements.

The team conducted field investigations on all active sites selected for this study. Because our right of entry authority expires with the termination of jurisdiction at bond release, we did not conduct on-site field inspection on the two bond released sites. Each permit was examined to determine whether the final surface configuration of the permit area was consistent with the approved permit and whether or not its (alternative) postmining land use was in development or had been achieved according to the plans and schedule required by the approved State program. In addition to the inspection criteria listed above, field investigations sought to ascertain which site conditions DMME/DMLR generally views as constituting "AOC." Review team members photographed each site to illustrate current conditions. The team obtained a representative cross section of premining land configuration from each permit package and a postmining land configuration was determined using a global positioning system (GPS) survey. Chapter B of this report shows both the cross sections and the photographs the review team compiled for seven of the ten sites.

In general, the review team gathered descriptive information to assess how the State has been implementing the AOC restoration requirement. This information included:

• descriptions of elevation changes;
• excess spoil calculations;
• photographs of the site and the surrounding area;
• typical cross sections showing premining and postmining topography;
• comparisons of postmining drainage patterns, as obtained from field observations, with documented premining drainage patterns; and
• general descriptions of each mining operation based on permit and inspection documents.

This information was used to document the conditions that the Virginia regulatory authority regards as constituting postmining AOC and to evaluate differences, if any, between the final configuration of sites with AOC variances and those without AOC variances. Appendix I contains a copy of the performance agreement between DMME/DMLR and OSM. Appendix V contains a copy of the evaluation form used by the team.

6. FINDINGS AND ANALYSES

a. Approximate Original Contour (AOC)

In order to facilitate a more comprehensive understanding of State implementation of the AOC requirement, the team gathered information beyond what might normally be collected by OSM in reviewing State AOC decisions. For example, rather than only verifying that the State followed a reasonable process in making its determination and that the on-the-ground reclamation conformed to the permit, the team developed its own descriptions of the site including cross sections, photographs, etc. to facilitate an overall understanding of what is considered as AOC within the State. Tables A-4 and A-5, pages A-21 and A-23 respectively, as well as Chapter B of this report, provide descriptive information about all the sites evaluated.

Excavated material swells because of the creation of voids during mining. The swell factor is one of the elements considered in estimating the number and size of fills needed to conduct an operation. Table A-5 shows that not all of the permit applications that were reviewed contained information regarding swell factors and the amount of predicted excess spoil to be placed in fills. While there is no specific numerical requirement in the regulations relating to swell factor, the permit applications should contain information regarding spoil calculations and the amount of excess spoil to be placed in fills. This information may be a good indicator of the degree to which an operation proposes to use available material to reach AOC.

To evaluate how DMME/DMLR is making AOC determinations, the team compared operations that return(ed) the land to AOC to those granted variances from AOC. The team made the following observations:

• Both sites with and sites without AOC variances sustained comparable gains or reductions in elevation. Sites returned to AOC had maximum elevation changes ranging from -50 to -140 feet with an average change of -31 feet. See Table A-4 on page A-21. Sites with a variance from AOC had maximum elevation changes of +20 feet to -140 feet with an average change of -26 feet. Final grading plans for some sites that were to be returned to AOC differed little from those for sites that had AOC variances. As illustrated by the data for each permit (Chapter B), both sites with AOC variances and sites that were to be returned to AOC have resulted in similar postmining land configurations.

• Table 5 shows that both sites with and sites without AOC variances required excess spoil disposal fills. Previously mined benches or valley fills hold the excess spoil not needed to achieve AOC, or for those sites with an AOC variance, the spoil not needed to achieve the approved postmining land use. Permittees proposed using an average of 3 fills (range of 0-10) per permit and our study found that, on average, 2 fills (range 0-6) were constructed.
• On average, our observations showed that on sites returned to AOC, the amount of excess spoil proposed for disposal in fills was less than the predicted excess spoil from swell (16 percent fill v. 30 percent swell). On non-AOC sites, average spoil disposal volumes exceeded predicted swell volumes (35 percent fill v. 32 percent swell). Overall, 70 percent of the permits sampled placed less spoil in excess spoil fills than had been predicted based on swell. As table A-5 (Page 23) shows, the percentage of the total spoil volume proposed to be placed in fills ranged from 2 to 83 percent for sites with AOC variances and between <1 and 39 percent for sites without AOC variances. On average, our study found that 83 percent of the total spoil predicted to be generated by mining is proposed to be returned to the mined out area or remined area, and 17 percent is proposed for excess spoil disposal.
• There were no significant changes in general drainage patterns for any site. (See table A-4). In other words, there was no visible significant redirection of runoff from one drainage area or watershed to another.
• During the permitting process, no other agencies or members of the public objected to the State's determination that the sampled sites, if mined and reclaimed in accordance with the permits, would meet the AOC requirement.

K E Y T O C O L U M N S I N T A B L E A - 4

Selected Sites-- Permit numbers for sites in the evaluation.

Entire Coal Seam Removed Y/N--This column indicates if the mining operation removed at least one entire coal seam in the upper fraction of a mountain, ridge, or hill. A multiple seam operation would not have to remove all seams being mined to receive a Yes (Y) in this column.

Stated Mining Type--This column lists the mining types found in the permit application. Note from the next column that mountaintop (mtntop) does not always include a waiver indicating an AOC variance was requested making it a mountaintop removal in the regulatory sense.

Requested AOC Variance Type--

SS--The permit was approved with a steep-slope AOC variance.

MTN--The permit was approved with a mountaintop removal variance.

N--No variance was approved. The site is to be returned to AOC.

Premining Land Use--Existing land use as described in the permit.

Postmining Land Use-- Land use to be attained after mining according to the permit.

Largest Elevation Change--The team calculated elevation change by comparing the current elevations, obtained from Global Positioning System (GPS) technology, of graded and disturbed areas with the premining contours obtained from the permit application. Representative cross-sections of current conditions were field located as close as possible to the cross-sections contained in the original permits. See Chapter B for cross sections and photographs. Each measurement was recorded as a negative or positive gain and then averaged accordingly.

Average Elevation Change-This is the average gain or reduction in elevation taken from representative cross-sections developed from premining contours and a field survey of disturbed and graded areas using GPS technology. Measurements were taken as follows:

Scale 1"=50' - every 25' Scale 1"=200" - every 100' Scale 1"=400' - every 200'.

Each measurement was recorded as a negative or positive gain and then averaged accordingly.

Run-Off Direction--This column indicates whether there was a major redirection of run-off from or drainage to another watershed caused by a change in contours from premining to postmining.

K E Y T O C O L U M N S I N T A B L E A - 5

Selected Sites-- Permit numbers for sites in the evaluation listed in chronologically according to the date of the original application, with the last two digits representing the year received.

Permit Size--The size in acres of the area covered by the listed permit.

AOC Variance Y/N--This column indicates if the permit as issued included a variance from the requirement to reclaim to AOC. A (Y) in this column means the permit was approved with either a mountaintop removal or steep-slope AOC variance.

Premining Overburden-This is the volume, in million cubic yards, of materials overlying the coal seam(s) prior to mining. This volume includes the volume of materials between coal seams for multiple-seam operations. Unless noted, the volume is "in-place" volume, not for broken or loose material.

Predicted Swell--This column lists the predicted increase in the volume of material resulting from the breakage or loosening of the overburden, in percentage and volume terms. The "swell" of material is a function of the type of rock and the method of breaking or loosening. The volume of material indicated in this column plus the premining overburden volume is roughly equivalent to the volume of "spoil" that must be placed back on the mined area or into excess spoil disposal sites, usually valley or durable rock fills in Virginia.

Total Spoil Generated by Mining--The total loose volume of material generated in the mining process of breaking up and the material (overburden) above the coal seam for removal.

Proposed Fill--This column lists the portion of the total spoil material which was not going to be placed on the mined area and that was proposed to be placed in fills, in both percentage and volume terms.

Number of Fills--This is the number of fills into which the proposed fill volume was to be deposited versus those actually constructed.

NA--No data available.

TABLE A-5

b. Mine Classification and Inventory

The electronic database currently used by DMME/DMLR to track permits, inspections, and enforcement actions was not created to meet regulatory requirements, but was developed as a means by which State administrators could monitor agency actions and assess program performance.

State officials have acknowledged that the database was never designed to distinguish between the three types of mountaintop operations. For example, State permitting documents and the database use the term "mountaintop" both to describe operations that will, according to their permits, be returned to AOC and to describe operations that will not be returned to AOC. The State has completed a manual search and has identified 38 sites having mountain top removal variances or steep slope AOC variances and has agreed to continue to review permits during the next quarter to further refine the list. According to DMME/DMLR officials, recommendations have already been made to modify a new data base that is being developed, and the procedures for operating the data base, to capture additional data. Once the new database goes on-line, data can be entered or updated when the permit is approved or as operators submit future permit applications, modifications, renewals, or revisions.

This updated information will differentiate among the three categories of mines described earlier in this report, i.e., (1) mines which remove all of the coal seam or seams in the upper fraction of a mountain or ridge and request a mountaintop removal variance from AOC; (2) mines which remove all of the coal seam or seams in the upper fraction of a mountain or ridge and return the land to AOC; and (3) mines in steep-slope areas (slopes exceeding 20 degrees) which may or may not have received steep-slope AOC variances according to State records.

c. Observed Postmining Land Uses

The review team found that the majority of the sampled permits were approved in accordance with postmining land uses in the approved state program for the various mining types. The team identified two permits where inappropriate postmining land uses were approved for the specific type of mining. See Table A-4, page A-21. Although one mountaintop removal operation was approved with a fish and wildlife postmining land use contrary to the approved program, the area for which the variance was granted has not been, and will not be, mined. One of the steep slope AOC variance sites was approved with an agricultural postmining land use. To prevent future approval of an inappropriate postmining land use for an AOC variance permit or mountaintop removal permit, DMLR revised its findings document to list the allowable land uses.

In its review of those permit applications with mountaintop removal and steep slope AOC variances, the team generally found most of the required documentation (see tables A-6 and A-7).

TABLE A-7

d. Steep-Slope Mining Operations With AOC Variances

Three of the ten permits in our sample were for operations with steep-slope AOC variances. These were included in the sample because the operations are similar in many respects to mountaintop removal operations and because variances under the approved program may be granted only for specific postmining land uses. One of the sampled sites that had been labeled as steep-slope variance in the State database was found to have a mountaintop removal variance instead. One permit for contour mining removed all coal seams at the end of a ridge in a fashion similar to a mountaintop removal operation. The team members found that one underground mine permit had been returned to AOC even though an AOC variance had been granted. DMME/DMLR's actions in these cases, while questionable, did not result in any environmental harm.

Although this evaluation concentrated on postmining land use and AOC, the oversight team generally observed that the sites were well revegetated after mining and that reclaimed areas appeared stable.

7. CONCLUSIONS AND RECOMMENDATIONS

The team believes that, overall, even though the study has identified a few weaknesses with the administration of particular aspects of the State program, mining operations in Virginia are generally conducted in a manner that protects the environment. Historically, decisions under the State program, such as permitting actions, have been made with public participation, as required in the program, with few questions or concerns having been raised by the commenters. OSM appreciates the interest expressed by DMME/DMLR in reviewing this topic and its assistance in gathering and analyzing data, and in addressing the few regulatory problems revealed.

• In general, OSM agrees that the reforms voluntarily initiated by DMME/DMLR are appropriate, and that existing mining operations, some of which were initially permitted many years ago, should be altered only to the extent practicable. DMME/DMLR has agreed to review all existing permits with variances and apply these reforms to ensure compliance with program requirements. DMME/DMLR will require revisions of any permits or portions thereof that have not been reclaimed in order to ensure that final reclamation leads to an approvable postmining land use. The team does not recommend that any areas that have been regraded or that have established vegetation be disturbed in order to address the concerns raised in this report.

The following is a discussion of our conclusions and recommendations for mines returned to AOC and for mines with AOC variances.

a. Approximate Original Contour (AOC)

An examination of all mining in Virginia shows that industry usually returns mine sites to AOC rather than obtaining an AOC variance. Our study also shows that while Virginia has no written guidance for AOC, practical application of the principles has resulted in both variance and AOC sites being returned to a configuration more closely resembling AOC.The team recommends that DMME/DMLR strive for more consistency between permit reviewers in determining when AOC variances are needed.

The permit files for the sampled sites contained no objections from landowners or other interested parties contesting DMME/DMLR's determination that the operations had been designed to restore the approximate original contour.

During the evaluation, the team observed that, in some cases, there is not much difference in the characteristics of mines that have been granted AOC variances and those that are supposed to return the land to AOC. All the sites blend reasonably well with surrounding topography. Contrary to the situation in other states, and because many sites in Virginia have pre-existing benches, Virginia operations generally maintain much more spoil on the bench in both AOC and non-AOC sites. It appears that AOC variances were not required for many of the sites sampled because of this practice.

b. Mine Classification and Inventory

Early on, the review team found that DMME/DMLR's current database was not designed to provide all of the information needed for this study. One of the problems with the current data base is that information pertaining to variances has been entered into the computer at the time the permit application is received and not at the time the permit is actually approved. Another problem is that DMME/DMLR's permitting database has historically classified various mining methods as mountaintop operations regardless of whether an AOC variance had been obtained. These practices have resulted in some sites being improperly classified as mountaintop removal operations, and other sites that were required to obtain variances during the permit review process as not being identified as having variances. DMME/DMLR has responded to these problems by instructing its field inspection staff to verify and supplement the data in its computers. It is currently developing a new tracking system that will classify permits as they are issued or revised. DMME/DMLR's proposed changes to the database and its information collection procedures will enable those using the system to distinguish between the various types of mining operations and variances.

c. Mountaintop Removal Mining And Steep Slope Operations With AOC Variances

Of the ten permits reviewed, seven included mountaintop removal or steep slope variances from AOC. See Table A-4, page A- 21. Most of the land uses associated with these variances related to low intensity agricultural uses such as hay and pastureland. The premining topography on most permits in our sample have naturally occurring flat or gently rolling areas in addition to the steep slopes. Restoration to AOC or near AOC reestablishes the flat or rolling areas for implementing the postmining land use. We did find one mountaintop removal operation with an inappropriate land use but it turned out that the area subject to the variance was never mined. We also found one steep slope operation with an unauthorized land use. DMME/DMLR recognizes these mistakes and is revising its "findings procedures" to eliminate future approval of unauthorized land uses.

d. Permit Documentation

Except as discussed below, OSM found that all of the mountaintop removal permits with AOC variances contained all of the documentation for approving the designated postmining land use. While the team made a determination of completeness regarding the documentation, it did not attempt to determine the adequacy of the documentation in most cases. The mountaintop removal permits with an agricultural postmining land use were approved using the land owners' request as the "need and market data." DMME/DMLR accepts a letter from the land owner as the need/market data for low intensity agricultural and residential postmining land uses. DMLR is changing this practice and is currently developing guidance to ensure compliance with this section.

In steep slope AOC variance cases, the specific documentation of the finding that watersheds be improved was uniformly absent from permits. DMME/DMLR explained that by approving this variance that it has considered this item and made a positive finding. DMME/DMLR, nevertheless, has already started developing procedures to document this finding in writing.

EVALUATION REPORTS AND CROSS SECTIONS

This chapter contains individual discussions of each of the 10 permits initially selected for this review. Each discussion describes the type of mining, mining status, postmining land use, and AOC status of the permit, as well as the number of excess spoil fills constructed or to be constructed at the site.

It is difficult, by narrative means alone, to adequately compare the final contour of a section of reclaimed land to the premining contour of the same area. Therefore, OSM has included computer-generated cross sections of each permit area.

The cross sections support the narrative descriptions provided for each permit. The cross sections in this report are intended to compare the premining topography with the final configuration after mining and reclamation. In order to provide a better understanding of this relationship, a brief description of these cross sections, and how they were derived, follows:

A 1968 Bureau of Mines publication, A Dictionary of Mining, Mineral, and Related Terms (U.S. Department of the Interior, 1968), defines cross section as a "profile portraying an interpretation of a vertical section of the earth ..." Generally, in mine surveying, this would involve establishing a baseline on a topographic map so that it would run the centerline and the length of a ridge or mountain. The next step in the process would be to profile or take cross sections of the baseline, usually every 100 feet. This process necessitates determining the ground elevation at known points along the cross section line. These cross sections, taken at right angles or perpendicular to the baseline, represent a slice "through the mountain" and provide a vertical profile of the existing terrain.

For this evaluation, the evaluation team established a line that, in its judgment, would be representative of the centerline of a ridge or mountain and made the measurements along that one line as opposed to measuring points on several lines at right angles from the centerline.

Therefore, although data from the permits was often used in the development of the cross section, the representations in this report may appear different from cross sections in the permit that were taken in different places or at different angles from the selected line.

The premining configuration, (ORIGINAL GROUND on the cross sections) was plotted from existing topographic maps while postmining configurations were surveyed by a global positioning system (GPS). Both configurations were plotted (translated to a graph) on the same scale to compare the premining configuration with the postmining configuration.

The team encourages readers to cross-reference the figures, tables, graphs, and cross sections with the descriptions of the 10 permit areas UNDER discussion here.

Site Designation: Bond Released Mountaintop Removal Permit

Virginia By Products Division of Knox Creek , Permit No. 1100321; Issued Nov. 29, 1983

Location: Lat. N 37° 21' 19", Long. W 81° 57' 17", in Buchanan County, Virginia

File Review Date: November 30, 1998

Mining Type: This surface mining permit is a 156.9 acre mountaintop removal operation with an approved variance on all coal removal areas. This operation mined the Blair and Eagle coal seams using the mountaintop removal mining method. No site visit was conducted on this mining operation.

Mining Status: Mining has been complet