COALEX REPORT 117

	Coalex Report 117

This is the Office of Surface Mining's library of COALEX Research Reports. COALEX is a database of mining and reclamation information, including the Surface Mining Law and regulations, maintained in LEXIS-NEXIS -- a commercial, on-line research service. These reports have been compiled under a cooperative agreement between the Office of Surface Mining and the Interstate Mining Compact Commission, which represents most U.S. coal producing states. The following report includes an analysis of a specific issue requested by a state regulatory authority with responsibility for carrying out the Surface Mining Law. Copies of the research reports and attachments are available to the public, upon request. For additional information, or to obtain copies of the listed attachments, contact Ron Tarquinio by phone at (202) 208-2882 or by e-mail at rtarquin@osmre.gov.

COALEX STATE COMPARISON REPORT - 117
June 26, 1989

Mr. Bruce Williams
Department for Surface Mining
No. 2 Hudson Hollow
Frankfort, Kentucky 40601

TOPICS:
I HIGHWALL ELIMINATION: REGULATIONS OF INDIANA, TENNESSEE,
WEST VIRGINIA, WYOMING, MONTANA
II CONTEMPORANEOUS RECLAMATION: REGULATIONS OF INDIANA, TENNESSEE, WEST
VIRGINIA, WYOMING, MONTANA

INQUIRY I: According to federal law, all highwalls are to be eliminated. What is the policy
regarding highwall elimination in the following states: Indiana, Tennessee, West Virginia,
Wyoming and Montana?

INQUIRY II: What is the definition of "contemporaneous reclamation"? How do the five states
listed above regulate the timing of reclamation?

SEARCH RESULTS: Research was performed using the COALEX Library on LEXIS. The retrieved
information is discussed below. Copies of federal and state statutes and regulations as well as
Office of Surface Mining (OSM) Directives are attached.

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

FEDERAL STATUTORY AUTHORITY

Statutory authority for the elimination of highwalls is contained in the Surface Mining Control and
Reclamation Act of 1977 (SMCRA) at Sec. 515, 30 U.S.C. 1265. Subsection 515(b)(3) requires
that all surface coal mining operations backfill, compact and grade "in order to restore the
approximate original contour of the land with all highwalls...eliminated...." The definition of
"approximate original contour" (AOC) is found in Sec. 701(2).

Subsection 515(b)(16) requires that reclamation occur as "contemporaneously as practicable"
with mining operations.

Variances from the requirements to return land to AOC are found in Subsections 515(b)(3), for
"thin" and "thick" overburden; 515(e)(2), for variance from steep-slope requirement of 515(d)(2);
other 515(e) subsections permit variances from AOC under certain circumstances.

FEDERAL REGULATORY AUTHORITY: EXISTING REGULATIONS

30 CFR 701.5 provides the definition of AOC.

Part 816. Performance Standards for Surface Mining
1. 30 CFR 816.100 requires that reclamation (backfilling, grading, etc.) occur as
"contemporaneously as practicable" with mining operations. Criteria for variances from
this regulation appear in Sec. 785.18.

2. 30 CFR 816.101. The time and distance requirements for backfilling and grading were
deleted May 24, 1983 (48 FR 15411).

3. 30 CFR 816.102 provides general backfilling and grading requirements. (a)(1) requires the
restoration of AOC. Variances from AOC are permitted in accordance with Sec. 785.16
[subsection (k)(3)(ii)]. (a)(2) requires the elimination of all highwalls except for small
depressions [subsection (h)] and previously mined highwalls [subsection (k)(3)(iii)].

4. 30 CFR 816.104 provides the exception to AOC for thin overburden.

5. 30 CFR 816.105 provides the exception to AOC for thick overburden.

6. 30 CFR 816.106 regulates backfilling and grading of previously mined areas. Sites
containing a preexisting highwall are to be eliminated to the "maximum extent technically
practical" in accordance with set criteria.

7. 30 CFR 816.107 regulates backfilling and grading of steep slope sites.

8. 30 CFR 816.133(d), in conjunction with 785.16, provide the criteria for variances from
restoring AOC for steep slope areas.
(d)(7) requires the highwall to be backfilled with spoil material to achieve a static safety
factor of "at least 1.3".

Part 817. Performance Standards for Underground Mining
30 CFR 817.100, 817.102, 817.106, 817.107, and 817.133(d) correspond to the 816 sections
above.

FEDERAL REGULATORY AUTHORITY: INITIAL PROGRAM REGULATIONS

Sec. 715.14 Backfilling and grading, part of the general performance standards from the Initial
Program Regulations is still in force. Text is attached.

OSM TEMPORARY DIRECTIVE
Subject No. INE-39; Transmittal No. 543 (June 7, 1989). On interim program sites, no
enforcement action will be taken where some highwall remains, "but does not exceed six (6) feet
or ten percent (10%) of the vertical highwall".

FEDERAL REGULATORY AUTHORITY: PROPOSED REGULATIONS

On October 31, 1988 (53 FR 43970), OSM announced proposed changes to Sec. 785.16,
816.100, 816.101, 816.104, 816.105, 816.133(d)/817.133(d).

1. Sec. 785.16 and 816.133(d)/817.133(d). Only variances from AOC for steep slope
operations are permitted.

2. 816.100 and 816.101. OSM proposes to delete the last sentence of 816.100 because it
will duplicate a requirement in proposed 816.101(b).
816.101(a) would establish backfilling and grading time and distance schedules for
contour mining (60 days or 1,500 linear feet) and area mining (completion within 180
days following coal removal and not more than four spoil ridges behind the pit being
worked).
816.101(b) would allow the regulatory authority to establish alternative backfilling and
grading schedules, consistent with (a) above.
816.101(c) would establish alternative standards to be incorporated into any backfilling
and grading schedule.
816.101(d) would extend the time allowed for backfilling and grading.

3. 816.104 and 816.105 would provide more specific definitions of thin and thick overburden
and add performance standards to each section.

LEGISLATIVE HISTORY

FEDERAL CASE LAW

See relevant excerpts from the Preamble to 53 FR 43970 (OCTOBER 31, 1988) and the
SIGNIFICANT ISSUE REPORT - 1, both of which are enclosed as attachments.

STATE STATUTES AND REGULATIONS

The cross references between the federal and state regulations are approximate. They originate
from two sources: (1) the COALEX Library (as obtained from each state's "Side-by-Side" report)
and (2) as a result of the general research.

Absence of a federal-state section match indicates that no relevant state section was identified in
the COALEX Library.

(Reformatted from original)

FEDERAL REGULATIONS
CORRESPONDING STATE REGULATIONS

1. INDIANA.
The language of the Indiana regulations follows the federal regulatory language.

Federal Section: 30 CFR 785.16 Permits incorporating variances from AOC restoration
requirements
State Regulation: 310 IAC 12-3-97 AOC variance for steep slope mining; Permits

Federal Section: 30 CFR 785.18 Variances for delay in contemporaneous reclamation
requirements in combined surface and underground mining activities
State Regulation: 310 IAC 12-3-99 Variances for delay in contemporaneous reclamation
requirements in combined surface and underground mining operations

Federal Section: 30 CFR 816.100 Contemporaneous reclamation (Surface Mining)
State Regulation: 310 IAC 12-5-53 Contemporaneous reclamation

Federal Section: 30 CFR 816.101 Backfilling and grading: Time and distance requirements
State Regulation: 310 IAC 12-5-54.1 Backfilling and grading; Timing and distance limitations

Federal Sections: 30 CFR 816.102 Backfilling and grading: General requirements
30 CFR 816.106 Backfilling and grading: Previously mined areas
State Regulation: 310 IAC 12-5-55.1 Backfilling and grading; General requirements

Federal Section: 30 CFR 816.105 Backfilling and grading: Thick overburden
State Regulation: 310 IAC 12-5-57.1 Backfilling and grading; Thick overburden

Federal Sections: 30 CFR 816.106/30 CFR 817.106 Backfilling and grading: Previously mined
areas
30 CFR 816.107/30 CFR 817.107 Backfilling and grading: Steep slopes
State Regulation: 310 IAC 12-5-150.1 Steep slopes; Backfilling and grading

Federal Section: 30 CFR 817.100 Contemporaneous reclamation (Underground Mining)
State Regulation: 310 IAC 12-5-117 Underground mining; Contemporaneous reclamation

Federal Sections: 30 CFR 817.102 Backfilling and grading: General requirements
30 CFR 817.106 Backfilling and grading: Previously mined areas
State Regulation: 310 IAC 12-5-119.1 Underground mining; Backfilling and grading; General
requirements

2. TENNESSEE
OSM directly regulates the surface coal mining operations in Tennessee through regulations
contained in 30 CFR Part 942 (49 FR 38874, OCTOBER 1, 1984). Listed below are the current
relevant Part 942 sections followed by the relevant sections from the original state program.

Federal Section: 30 CFR 785 Requirements for permits for special categories of mining
State Regulation: 30 CFR 942.785 Requirements for permits for special categories of mining

Federal Section: 30 CFR 816 Permanent program performance standards-Surface mining
activities
State Regulation: 30 CFR 942.816 Performance standards-Surface mining activities (includes
Sec. 816.101: Backfilling and grading timing requirements)

Federal Section: 30 CFR 817 Permanent Program Performance Standards-Underground
mining activities
State Regulation: 30 CFR 942.817 Performance standards-Underground mining activities

ORIGINAL STATE PROGRAM
Federal Section: 30 CFR 785.16 AOC variances
State Regulation: 0400-1-6-.06 Permits incorporating variances from AOC restoration
requirements for steep slope mining

Federal Section: 30 CFR 785.18 Contemporaneous reclamation variances
State Regulation: 0400-1-6-.08 Variances for delay in contemporaneous reclamation
requirements in combined surface and underground mining operations

Federal Section: 30 CFR 785.18 Contemporaneous reclamation variances
State Regulation: 0400-1-16-.05 Compliance with variance terms

Federal Section: 30 CFR 816.100 Contemporaneous reclamation (Surface Mining)
State Regulation: 0400-1-14-.55 Concurrent reclamation

Federal Sections: 30 CFR 816.101 Backfilling and grading: Time and distance requirements
30 CFR 816.102 General requirements
State Regulation: 0400-1-14-.56 Timing of backfilling and grading

Federal Sections: 30 CFR 816.102 Backfilling and grading: General requirements
30 CFR 816.106 Previously mined areas
State Regulation: 0400-1-14-.57 Backfilling and grading: General grading requirements

Federal Section: 30 CFR 816.104 Backfilling and grading: Thin overburden
State Regulation: 0400-1-14-.59 Backfilling and grading: Thin overburden

Federal Section: 30 CFR 816.105 Backfilling and grading: Thick overburden
State Regulation: 0400-1-14-.60 Backfilling and grading: Thick overburden

Federal Section: 30 CFR 816.107 Backfilling and grading: Steep slopes
State Regulation: 0400-1-20-.04 Steep slopes: Performance standards

Federal Section: 30 CFR 816.133(d) Postmining land use
State Regulation: 0400-1-20-.05 Steep slopes: Limited variances

Federal Section: 30 CFR 816.133(d) Postmining land use
State Regulation: 0400-1-20-.06 Steep slopes: Multiple seam

Federal Section: 30 CFR 817.100 Contemporaneous reclamation (Underground Mining)
State Regulation: 0400-1-15-.52 Concurrent reclamation

Federal Sections: 30 CFR 817.101 Backfilling and grading: Time and distance requirements
30 CFR 817.102 General requirements
State Regulation: 0400-1-15-.53 Backfilling and grading: General requirements

Federal Section: 30 CFR 817.102 Backfilling and grading: General requirements
State Regulation: 0400-1-15-.54 Backfilling and grading: General grading requirements

3. WEST VIRGINIA
West Virginia regulations emphasize drainage control on regraded areas.

OSM recently held a comment period on proposed amendments to the West Virginia program.
One proposed amendment concerns augering on previously mined areas. A copy of the Federal
Register notice is attached. (54 FR 22783, MAY 26, 1989).

Federal Sections: 30 CFR 785.16 Variance from AOC restoration
30 CFR 816.107 Backfilling and grading: Steep slopes
30 CFR 816.133(d) Postmining land use
State Regulation: 6B.07 Performance standards; Method of operation

Federal Sections: 30 CFR 785.18 Variances for delay in contemporaneous reclamation
30 CFR 816.101 Backfilling and grading: Time and distance requirements
30 CFR 816.102 General requirements
30 CFR 816.106 Previously mined areas
State Regulation: 6B.09 Performance standards; Backfilling and regrading [Subsec. (e) =
Drainage control]

Federal Sections: 30 CFR 816.100 Contemporaneous reclamation (Surface Mining)
30 CFR 816.101 Backfilling and grading: Time and distance requirements
30 CFR 816.102 General requirements
State Regulation: 8B.09 Performance standards; Backfilling and regrading (Facilities
incidental to coal mining) [Subsec. (e) = Drainage control]

Federal Sections: 30 CFR 816.107 Backfilling and grading: Steep slopes
30 CFR 816.133(d) Postmining land use
State Regulation: 8B.07 Performance standards; Method of operation

Federal Sections: 30 CFR 785.16 Variances from AOC restoration
30 CFR 817.102 Backfilling and grading: General requirements
(Underground Mining)
30 CFR 817.107 Steep slopes
30 CFR 817.133(d) Postmining land use
State Regulation: 7B.08 Performance standards: Method of operation [Para. (a)(5) =
Drainage channels and flumes]

Federal Sections: 30 CFR 817.100 Contemporaneous reclamation
30 CFR 817.101 Backfilling and grading: Time and distance requirements
30 CFR 817.102 General requirements
30 CFR 817.106 Previously mined areas
State Regulations: 7B.11 Performance standards; Backfilling and regrading [Subsec. (g) =
Drainage control]
E.09 Performance standards; Materials removal [Drainage control
measures]

SMCRA Section: 515 Environmental Protection Performance Standards
Code of WV: 22A-3-12 Underground Coal Mine Safety Laws: General environmental
protection performance standards for surface mining; variances
22A-4-13 Underground Coal Mine Safety Laws: (Minerals other than coal)
Obligations of the operator [Drainage control]
20-6-8a Natural Resource Laws: Limitation on the issuance of new permits
for surface mining
20-6-13a Requirements regarding surface-mined areas where benches do
not result

4. WYOMING
Wyoming includes a reference to "drainage patterns" in the definition of AOC.

Federal Section: 30 CFR 701.5 Definitions
State Regulation: Chap. I Sec. 2 Authorities and definitions [excerpted]

Federal Sections: 30 CFR 785.16 Variances from AOC restoration
30 CFR 816.133/30 CFR 817.133 Postmining land use
State Regulation: Chap. IX Sec. 1 Variances for surface coal mining operations; Content of
requests

Federal Sections: 30 CFR 785.16 Variances from AOC restoration
30 CFR 816.133/30 CFR 817.133 Postmining land use
State Regulation: Chap. IX Sec. 3 AOC; Criteria for any variance approved under Sec. 1

Federal Section: 30 CFR 785.18 Variances for delay in contemporaneous reclamation
State Regulation: Chap. III Sec. 4 Permits for special categories of surface coal mining;
Combined surface and underground mining operations

Federal Sections: 30 CFR 816.100 Contemporaneous reclamation (Surface Mining)
30 CFR 816.101 Backfilling and grading: Time and distance requirements
30 CFR 816.102 General requirements
30 CFR 816.105 Thick overburden
30 CFR 816.106 Previously mined areas
30 CFR 816.133 Postmining land use
State Regulation: Chap. IV Sec. 2 General environmental protection performance standards

Federal Sections: 30 CFR 816.101 Backfilling and grading: Time and distance requirements
30 CFR 816.102 General requirements
30 CFR 816.104 Thin overburden
30 CFR 816.105 Thick overburden
30 CFR 816.107 Steep slopes
State Regulation: Chap. IV Sec. 3 Special environmental protection performance standards
applicable to surface coal mining and reclamation operations

Federal Section: 30 CFR 816.106 Backfilling and grading: Previously mined areas
State Regulation: Chap. V Sec. 7 Remining

Federal Section: 30 CFR 817 Permanent Program Performance Standards -Underground Mining
Activities
State Regulation: Chap. VII Sec. 2 Environmental protection performance standards applicable
to underground mining operations [Refers back to Chap. IV, Sec. 2 & 3]

SMCRA Section: 515 Environmental Protection Performance Standards
State Code: 35-11-401 Wyoming Environmental Quality Act - Compliance generally;
Exceptions
35-11-402 Wyoming Environmental Quality Act - Establishment of standards

5. MONTANA
OSM recently held a comment period on proposed amendments to the Montana program, including
one amendment on remining. The Federal Register notice is attached. (54 FR 21228, May 17, 1989).

Federal Sections: 30 CFR 816.101 Backfilling and grading: Time and distance requirements
30 CFR 816.102 General requirements
State Regulation: 26.4.501 General backfilling and grading requirements

Federal Section: 30 CFR 816.102 Backfilling and grading; General requirements
State Regulation: 26.4.515 Highwall reduction

Federal Section: 30 CFR 816.102 Backfilling and grading; General requirements
State Regulation: 26.4.518 Buffer zones

Federal Section: 30 CFR 816.102 General requirements
State Regulation: 56.4.512 Box cut spoils

Federal Section: 30 CFR 816.105 Backfilling and grading: Thick overburden
State Regulation: 26.4.511 Thick overburden

Federal Section: 30 CFR 816.133 Postmining land use
State Regulation: 26.4.824 Alternate reclamation: Alternate postmining land uses

Federal Section: 30 CFR 816.100 Contemporaneous reclamation
Mont. Code Ann.: 82-4-231 Montana Strip and Underground Mine Reclamation Act - Submission
of and action on reclamation plan

Federal Sections: 30 CFR 785.16 Variances from AOC restoration
30 CFR 816.100 Contemporaneous reclamation
30 CFR 816.101 Backfilling and grading: Time and distance requirements
30 CFR 816.102 General requirements
30 CFR 816.107 Steep slopes
30 CFR 816.133 Postmining land uses
Mont. Code Ann.: 82-4-232 Montana Strip and Underground Mine Reclamation Act - Area
mining required -- bond -- alternative plan

ATTACHMENTS
A. Federal Statutes
1. SMCRA Sec. 515, 30 U.S.C. 1265, Environmental Protection Performance Standards
2. SMCRA Sec. 701(2), 30 U.S.C. 1291, Definitions
B. Federal Regulations
1. 30 CFR 701.5 Definitions
2. 30 CFR Part 785 Requirements for Permits for Special Categories of Mining
a. 785.16 Permits incorporating variances from AOC restoration requirements
b. 785.18 Variances for delay in contemporaneous reclamation requirement in
combined surface and underground mining activities
3. 30 CFR Part 816 Permanent Program Performance Standards - Surface Mining
Activities
a. 816.100 Contemporaneous reclamation
b. 816.102 Backfilling and grading: General requirements
c. 816.104 Backfilling and grading: Thin overburden
d. 816.105 Backfilling and grading: Thick overburden
e. 816.106 Backfilling and grading: Previously mined areas
f. 816.107 Backfilling and grading: Steep slopes
g. 816.133 Postmining land use
4. 30 CFR Part 817 Permanent Program Performance Standards - Underground Mining
Activities
a. 817.100 Contemporaneous reclamation
b. 817.102 Backfilling and grading: General requirements
c. 817.106 Backfilling and grading: Previously mined areas
d. 817.107 Backfilling and grading: Steep slopes
e. 817.133 Postmining land use
5. 30 CFR 715.14 Initial Program Regulations; Backfilling and grading
C. OSM Directive, Subj. No. INE-39, Transmittal No. 543 (June 7, 1989)
D. 53 FR 43970 (October 31, 1988)
E. Interstate Mining Compact Significant Issue Report No. One - Elimination of Highwalls
F. Indiana Regulations and Statutes
1. 310 IAC 12-3-97 AOC variance for steep slope mining; permits
2. 310 IAC 12-3-99 Variances for delay in contemporaneous reclamation requirements
in combined surface and underground mining operations
3. 310 IAC 12-5-53 Contemporaneous reclamation
4. 310 IAC 12-5-54.1 Backfilling and grading; Timing and distance limitations
5. 310 IAC 12-5-55.1 Backfilling and grading; General requirements
6. 310 IAC 12-5-57.1 Backfilling and grading; Thick overburden
7. 310 IAC 12-5-150.1 Steep slopes; backfilling and grading
8. 310 IAC 12-5-117 Underground mining; Contemporaneous reclamation
9. 310 IAC 12-5-119.1 Underground mining; Backfilling and grading; General
requirements
G. Tennessee Regulations and Statutes
1. 30 CFR 942.785 Requirements for permits for special categories of mining
2. 30 CFR 942.816 Performance standards - Surface mining activities
3. 30 CFR 942.817 Performance standards - Underground mining activities
4. 0400-1-6-.06 Permits incorporating variances from AOC restoration requirements for
steep slope mining
5. 0400-1-6-.08 Variances for delay in contemporaneous reclamation requirements in
combined surface and underground mining operations
6. 0400-1-16-.05 Compliance with variance terms
7. 0400-1-14-.55 Concurrent reclamation
8. 0400-1-14-.56 Timing of backfilling and grading
9. 0400-1-14-.57 Backfilling and grading; General grading requirements
10. 0400-1-14-.59 Backfilling and grading: Thin overburden
11. 0400-1-14-.60 Backfilling and grading: Thick overburden
12. 0400-1-20-.04 Steep slopes; Performance standards
13. 0400-1-20-.05 Steep slopes; Limited variances
14. 0400-1-20-.06 Steep slopes; Multiple seam
15. 0400-1-15-.52 Concurrent reclamation
16. 0400-1-15-.53 Backfilling and grading: General requirements
17. 0400-1-15-.54 Backfilling and grading: General grading requirements
H. West Virginia Regulations and Statutes
1. 54 FR 22783 (May 26, 1989)
2. 6B.07 Performance standards; Method of operation
3. 6B.09 Performance standards; Backfilling and regrading
4. 8B.09 Performance standards; Backfilling and regrading
5. 8B.07 Performance standards; Method of operation
6. 7B.08 Performance standards; Method of operation
7. 7B.11 Performance standards; Backfilling and regrading
8. E.09 Performance standards; Materials removal
9. W. Va. Code Sec. 22A-3-12 Underground Coal Mine Safety Laws: General
environmental protection performance standards for surface mining; Variances
10. W. Va. Code Sec. 22A-4-13 Obligations of the operator
11. W. Va. Code Sec. 20-6-8a Natural Resource Laws: Limitation on the issuance of new
permits for surface mining
12. W. Va. Code Sec. 20-6-13a Requirements regarding surface-mined areas where
benches do not result
I. Wyoming Regulations and Statutes
1. Chap. I, Sec. 2 Authorities and definitions [excerpted]
2. Chap. IX, Sec. 1 Variances for surface coal mining operations; Content of requests
3. Chap. IX, Sec. 3 AOC; Criteria for any variance approved under Sec. 1
4. Chap. III, Sec. 4 Permits for special categories of surface coal mining; Combined
surface and underground mining operations
5. Chap. IV, Sec. 2 General environmental protection performance standards
6. Chap. IV, Sec. 3 Special environmental protection performance standards applicable
to surface coal mining and reclamation operations
7. Chap. V, Sec. 7 Remining
8. Chap. VII, Sec. 2 Environmental protection performance standards applicable to
underground mining operations
9. Wyo. Stat. Sec. 35-11-401 Wyoming Environmental Quality Act - Compliance
generally; exceptions
10. Wyo. Stat. Sec. 35-11-402 Establishment of standards
J. Montana Regulations and Statutes
1. 54 FR 21228 (May 27, 1989)
2. 26.4.501 General backfilling and grading requirements
3. 26.4.515 Highwall reduction
4. 26.4.518 Buffer zones
5. 56.4.512 Box cut spoils
6. 26.4.511 Thick overburden
7. 26.4.824 Alternate reclamation: Alternate postmining land use
8. Mont. Code Ann. Sec. 82-4-231 Montana Strip and Underground Mine Reclamation
Act - Submission of and action on reclamation plan
9. Mont. Code Ann. Sec. 82-4-232 Area mining required -- bond -- alternate plan

Research conducted by: Joyce Zweben Scall

(Home Page)

Office of Surface Mining
1951 Constitution Ave. N.W.
Washington, D.C. 20240
202-208-2719
getinfo@osmre.gov