COALEX STATE INQUIRY REPORT - 202
January, 1992
Stephen C. Keen
Director, Mines and Minerals
Division of Energy
1615 Washington Street, East
Charleston, West Virginia 25311
TOPIC: OFFSITE DISPOSAL OF EXCESS SPOIL
INQUIRY: Can excess spoil from a surface coal mining operation be used as fill in the construction
of a highway near the mine site? If the excess spoil can be used, must the site be permitted?
Please locate any information which addresses these issues.
SEARCH RESULTS: Searching the legislative history of SMCRA, OHA decisions, case law and
Federal Register materials in COALEX and related LEXIS libraries, retrieved little that was directly
on point. What was retrieved indicated that Congress's primary concern in regulating excess spoil
disposal was to prevent damage to offsite areas, particularly to the water quality. The Secretary,
in commenting on submitted state program amendments, stressed the need for disposal areas to
be permitted and bonded. Several relevant OHA decisions and an excerpt from an early Flannery
ruling are also discussed below.
Materials searched raised questions relating to additional topics not included here: affected
area; roads; 2 acre exemptions (offsite storage or spoil disposal areas count toward total
acreage).
Copies of the materials listed below area attached.
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LEGISLATIVE HISTORY
S. REP. 402, 93rd Cong., 1st Sess. 63 (September 21, 1973). S. 425.
Reclamation Criteria: Protect offsite areas from damage; insure "that the permit will encompass
an area which covers the entire mining activity, including the storage or disposal of spoil and
waste. Therefore, the entire activity will be subject to all of the terms of the permit. The
Committee intends that permits be limited to the minimum area necessary to accommodate the
operation."
119 CONG REC 33299 (October 9, 1973)
Senator Baker introduced amendment No. 610 to S. 425 which would require that storage of
excess spoil "be made at areas designated and monitored by the regulatory authority. And
additionally that such areas be stabilized and revegetated as required for other lands affected by
the mining operation." The Senator reasoned:
"If uncontrolled, disposition of spoil material out of the permit area could become a serious
hazard to water quality."
CONFERENCE REPORT, 94th Cong., 1st Sess. 84 (May 2, 1975). Major Provisions. S. Rep. 101.;
H.R. 25
Placement of Spoil on the Downslope. "Permanent placement of spoil from initial cut of steep
slope mining operation would be allowed under limited conditions. This was permitted to balance
the stated needs of the industry and environmental protection. The conferees are aware that
initial cut spoil can be disposed of in many other ways including use in construction of haul roads
or placed on less steep slope disposal areas identified in approved plan including previously mined
lands not reclaimed to approximate original contour".
H.R. REP. 218, 95th Cong., 1st Sess. 150 (April 22, 1977). H.R. 2. Committee Recommendations.
Departmental Reports.
Recommendations of Interior Secretary Cecil Andrus to the Committee on Interior and Insular
Affairs on HR 2 called for "strong spoil placement standards...to insure that there will be no offsite
damages." In a later letter, the Secretary suggested adding the following subparagraph to the
performance standards: "The least spoil possible to placed off the mined area".
INTERIOR OFFICE OF HEARING APPEALS DECISIONS
MARIO L. MARCON, 109 IBLA 213, IBLA 88-43 (1989).
Marcon, cited by Pennsylvania Department of Environmental Resources (DER) for
nonconcurrent reclamation of his minesite, allowed Valley Landfill to use soil from his minesite to
build haulage roads and to cover garbage dumped at a nearby landfill site. Finding that the state
had responded appropriately to OSM's 10-day notice and no federal inspection was required, the
IBLA affirmed Valley Landfill's use of soil or spoil from the abandoned minesite:
"Though appellant continues to seek written authorization of Valley Landfill's action, he does not
contradict DER's assertion that written authorization is unnecessary where, as here, the owner of
the property from which the cover material is removed is operating the landfill site."
BONE COAL CO. v OSM, Docket No. NX 9-82-R (1980).
The ALJ affirmed the issuance of the NOV for disposing of spoil off the permit area. In ruling at
the conclusion of the hearing, the Judge said:
"The fact that the property all belongs to Mr. Bone is not material.... The crucial point in these
cases is the permit area. You could permit the area and you could make it as a part of your plan
in disposing of spoil to widen a county road; that would be all right. But you didn't do that in this
case. The reason for the permit, of course, is to have control over how strip mining is done."
PARAMOUNT MINING CORP. v OSM, Docket Nos. CH 8-7-R, CH 8-11-R (1978).
Paramount, operating under a state permit (which was later amended when SMCRA became
effective), was found not to be in violation of the Interim Regulations for disposing of spoil in a
hollow area "for the purpose of establishing a road to connect with an interstate system of
highway from the property which was being reclaimed as an industrial park."
"I do not believe that it was the intention of the Secretary of the Interior or the Congress of the
United States [to] create such rules and regulations governing surface mining that would, by their
very nature, impede or restrict other economic development important to a state or to a locale
especially in view of overwhelming evidence that such construction or development would harm
neither the public nor the environment and could do nothing but aid in the reclaiming of orphaned
mine property and improving the economics of the community. I further find that the letter [from
the state] did not amend [the pre-SMCRA permit] so as to require the applicant to dispose of all
spoiled material within the permit property."
CASE LAW
SURFACE MINING REGULATION LITIGATION, 452 F Supp 327 (D DC May 3, 1978).
The court, ruling that the Secretary properly included regulations covering the disposal of spoil
in the interim program, restated the Secretary's reasons for regulating spoil disposal: to preserve
the hydrologic balance and prevent water pollution; and to control the restoration of land to its
approximate original contour and prevent land erosion.
REGULATORY HISTORY
Research in Federal Register preambles of proposed and final federal rules yielded only a
mention of highway fills in the discussion of safety factors under 816.106 Backfilling and grading:
Previously mined areas. 49 FR 41720 (SEPTEMBER 16, 1983). Final rule. Remining.
Relevant sections from the MARCH 13, 1979 (44 FR 14902) preamble are attached for
background. A list of other relevant Federal Register notices is included as an Attachment.
STATE PROGRAM AMENDMENTS
The following are excerpts from the Secretary's discussions of state program amendments
which were published in the Federal Register. The Secretary approved program amendments
which allow for the disposal of excess spoil outside the permit area as long as these disposal
areas are permitted and bonded. [NOTE: Amendments are included here to indicate OSM's
explanations of its rulings. Disapproved amendments indicated below may have been revised and
approved in subsequent state submissions; that information is not tracked in this Report.]
ALABAMA
47 FR 22030 (MAY 20, 1982). Final rule. Conditional approval of the Alabama submission.
The Alabama program contained a subsection not found in the federal program. The section
concerned the disposal of excess spoil generated by a current operation on areas previously
disturbed but not adequately reclaimed. The Secretary allowed the implementation of the plan
"on a controlled basis" for a one year trial period.
KENTUCKY
45 FR 71590 (OCTOBER 29, 1980). Discussion of comments.
A commentor wanted language added to allow the transportation of excess spoil or topsoil off
the permitted area to building sites. The Secretary responded that "all activities associated with
the mining operation must be within a permit area to assure that the disposal areas are covered
by the performance standards and bonding requirements of SMCRA."
51 FR 30486 (AUGUST 27, 1986). Final rule. Amendment approval.
Kentucky elected not to adopt a counterpart to the federal program "which provides for the
disposal of spoil outside the mine-out area in a manner other than that specified for the disposal
of excess spoil." Kentucky will consider all spoil disposed of outside the mined-out area to be
excess spoil.
VIRGINIA
46 FR 61088 (DECEMBER 15, 1981). Final rule; conditional approval of Virginia's proposed
permanent program.
Virginia regulations allowed disposal of excess spoil on areas other than the permit area where
environmental benefits would occur. The Secretary approved those portions of the regulations
which were equivalent to the federal regulations requirement for a permit and a bond. Program
approval was conditioned on the deletion of those portions of the regulations that were
inconsistent with SMCRA.
55 FR 2240 (JANUARY 23, 1990). Disapproval of proposed amendment.
The Secretary disapproved an amendment to the permanent program which would have
allowed spoil placement on no-cost contract sites because the revised regulation would not
require the sites to be permitted.
WEST VIRGINIA
45 FR 69249 (OCTOBER 20, 1980). Proposed rule. Partial approval of the permanent program.
The state law which allowed the placement of spoil outside the permit area if environmental
benefits resulted was disapproved because it did not provide "appropriate environmental
protection standards."
ATTACHMENTS
1. S. REP. 402, 93rd Cong., 1st Sess. 63 (September 21, 1973). S. 425. [Excerpts]
2. 119 CONG REC 33299 (October 9, 1973). [Excerpts]
3. CONFERENCE REPORT, 94th Cong., 1st Sess. 84 (May 2, 1975). Major Provisions. S. Rep.
101. H.R. 25. [Excerpts]
4. H.R. REP. 218, 95th Cong., 1st Sess. 150 (April 22, 1977). H.R. 2 Committee
Recommendations. Departmental Reports. [Excerpts]
5. MARIO L. MARCON, 109 IBLA 213, IBLA 88-43 (1989).
6. BONE COAL CO. v OSM, Docket No. NX 9-82-R (1980).
7. PARAMOUNT MINING CORP. v OSM, Docket Nos. CH 8-7-R, CH 8-11-R (1978).
8. SURFACE MINING REGULATION LITIGATION, 452 F Supp 327 (D DC May 3, 1978).
[Excerpts]
9. 49 FR 41720 (SEPTEMBER 16, 1983). Final rule. Remining. [Excerpts]
10. 44 FR 14902 (MARCH 13, 1979). Permanent Program Final Preamble -- Final Rule.
[Excerpts]
a. 701.5 Definitions
b. 780.35 Disposal of excess spoil
c. 816.71-74 Disposal of excess spoil
d. 816.71 Disposal of excess spoil: General requirements.
e. 816.72 Disposal of excess spoil: Valley fills.
f. 816.73 Disposal of excess spoil: Head-of-hollow fills.
g. 816.74 Disposal of excess spoil: Durable rock fills.
11. List of relevant Federal Register notices.
12. ALABAMA: 47 FR 22030 (MAY 20, 1982). Final rule. Conditional approval of the Alabama
submission. [Excerpts]
13. KENTUCKY
a. 45 FR 71590 (OCTOBER 29, 1980). Discussion of comments. [Excerpts]
b. 51 FR 30486 (AUGUST 27, 1986). Final rule. Amendment approval. [Excerpts]
14. VIRGINIA
a. 46 FR 61088 (DECEMBER 15, 1981). Final rule; conditional approval of Virginia's
proposed permanent program. [Excerpts]
b. 55 FR 2240 (JANUARY 23, 1990). Disapproval of proposed amendment. [Excerpts]
15. WEST VIRGINIA: 45 FR 69249 (OCTOBER 20, 1980). Proposed rule. Partial approval of
the permanent program. [Excerpts]
Research conducted by: Joyce Zweben Scall
