COALEX REPORT 285

	Coalex Report 285

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 Inquiry Report - 285
May, 1994

Sylvia Wilcox, Esquire
Department of Natural Resources
Division of Reclamation
402 W. Washington Street
Indianapolis, Indiana 46204

TOPIC: ROOT MATERIAL IN TOPSOIL

INQUIRY: Indiana section 310 IAC 12-5-12.1 corresponds to the federal regulations 30 CFR 816.22
and provides the rules for removing, storing, etc. topsoil. Please locate administrative cases and
other material that discuss what constitutes topsoil, how it is identified and, in particular, the
observance of root material.

SEARCH RESULTS: Using the COALEX Library in LEXIS, two Interior Administrative Law Judge
decisions were retrieved that contain statements from the inspectors indicating that they were able
to identify topsoil in part due to the presence of roots. Two additional decisions, the preamble to
the final rule for topsoil and an existing COALEX Report on substituting alternative materials for
topsoil are enclosed for background.

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

ADMINISTRATIVE DECISIONS
GATLIFF COAL CO. v OSM, Docket Nos. NX 92-17-R, NX 92-7-P (1993).
   The NOV issued for failure to salvage topsoil was withdrawn because Gatliff offered persuasive
evidence that they had not used topsoil in the clay liner of a basin. The inspector testified that he
had looked for roots, among other things, as evidence that topsoil had been used to construct the
liner of a basi, but has not found any. A Gatliff engineer stated that he saw subsoil material placed
in the pond and "saw topsoil material after it was placed in the topsoil pile and could identify it
because of the roots and woody debris in the material." 


M & M MINING, INC. v OSM, Docket No. CH 0-125-R (1981). M & M, INC. v OSM, 3 IBSMA 135,
IBSMA 81-37 (1981).
   M & M was cited for failure to segregate and protect all of its topsoil or "A" horizon material. The
reclamation specialist inspecting the site found topsoil mingled with spoil. The specialist was able to
identify the topsoil material "by its color and the fact that small roots were mingled with the darker
material."


CARBON FUEL CO. v OSM, Docket Nos. CH 9-1-R, CH 9-2-P, CH 9-3-P, CH 9-6-P (1979). CARBON
FUEL CO. v OSM, 1 IBSMA 253, IBSMA 79-9 (1979).
   In discussing the ability to identify topsoil, the ALJ stated:

"Although the word 'topsoil' is used liberally throughout the Act and regulations, there is no
definition for topsoil either in the Act or in the interim regulations. The thrust of the Act is therefore
that the A horizon should be removed, stockpiled, and stored to be replaced on disturbed areas or
enough material below the A horizon to comprise a total of 6 inches, the purpose being that the
drafters considered this to be the proper material for rebegetation when the mined area has been
returned to approximate original contour."


BACKGROUND MATERIAL
48 FR 22092 (MAY 16, 1983). Final rule. Topsoil.

COALEX STATE INQUIRY REPORT - 176, "Substituting alternative materials for topsoil" (1991).
   NOTE: The Report is enclosed without attachments.


ATTACHMENTS
A.   GATLIFF COAL CO. v OSM, Docket Nos. NX 92-17-R, NX 92-7-P (1993).
B.   M & M MINING, INC. v OSM, Docket No. CH 0-125-R (1981). 
C.   M & M, INC. v OSM, 3 IBSMA 135, IBSMA 81-37 (1981).
D.   CARBON FUEL CO. v OSM, Docket Nos. CH 9-1-R, CH 9-2-P, CH 9-3-P, CH 9-6-P (1979). 
E.   CARBON FUEL CO. v OSM, 1 IBSMA 253, IBSMA 79-9 (1979).
F.   48 FR 22092 (MAY 16, 1983). Final rule. Topsoil.
G.   COALEX STATE INQUIRY REPORT - 176, "Substituting alternative materials for topsoil"
     (1991).


Research conducted by: Joyce Zweben Scall

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