COALEX State Inquiry Report - 341
May, 1998
Charles Sturey
Division of Environmental Protection
10 McJunkin Road
Nitro, West Virginia 25143
TOPIC: Approximate original contour (AOC)
SEARCH INQUIRY: Please survey the other IMCC member states and conduct research on the
following issues:
(1) What are the other states' definitions of "AOC"?
(2) Do the other states have standards for determining AOC, e.g., criteria for establishing
when an area "closely resembles the general surface configuration of the land prior to
mining" and when it doesn't?
(3) What are other states' requirements for variances from AOC and exemptions for
mountaintop removal?
SEARCH AND SURVEY RESULTS: Research was conducted using prior COALEX Reports,
COALEX and other materials available in LEXIS and a telephone survey of selected states.
For the most part, the language and requirements of the state statutes and regulations follow
federal SMCRA and regulations. For implementing the rules, states use OSM Directive INE-26 as a
guideline. States have also been using several Interior administrative decisions for guidance.
Directive INE-26 and the most persuasive Interior decisions, identified by research and provided
by IMCC member states in response to the survey, are listed below. Copies of these items are
attached. Several COALEX Reports are also attached. These discuss additional Interior
administrative decisions as well as legislative history materials. Copies of these Reports are
included without attachments.
Two tables attached to the end of this Report provide a summary of survey results and a list of
relevant federal regulations with the cite for the most recent Federal Register notice where those
rules are discussed. A listing of the regulatory history of each of these regulations is also
provided.
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OSM DIRECTIVE, Subject No. INE-26, Transmittal No. 338, "Approximate Original Contour"
(Issued 5/26/87).
"The purpose of this directive is to provide policy guidance and procedures for determining
whether backfilling and grading have met the requirements of approximate original contour...."
The Background section provides a statement on congressional intent: "...Congress recognized
and acknowledged that there would likely be differences between the premining and postmining
topography. Furthermore, the reclamation of any minesite must take into consideration and
accommodate site-specific and unique characteristics of the surrounding terrain and postmining
land uses. Consequently, AOC determinations must necessarily retain a certain amount of
subjectivity and often rely principally on the judgment of the regulatory authority, which has been
given the primary responsibility for such decisions under the Act."
The Procedures section provides some specific guidance on such topics as:
(1) The role of permitting: "...the anticipated postmining topography must be determined in the
permitting process with typical cross section or contour maps depicting both the premining and
anticipated postmining slopes with sufficient clarity and detail to enable a comparison to
determine if AOC has been achieved."
(2) Inspection criteria: "Inspectors shall determine whether AOC requirements have been met by
applying the following three elements contained in the definition of AOC.
(a) General surface configuration: postmining contours of the reclaimed area should "closely
resemble" but need not "exactly match" the premining contours. "...the general terrain should be
comparable to the premined terrain".
(b) Drainage: The reclaimed area should blend into and complement the drainage pattern of the
surrounding area.
( c) Highwalls and spoil piles: Highwalls, spoil piles, and depressions "shall be eliminated in a
manner which blends in with the surrounding terrain."
PETER J. ROSATI, 119 IBLA 219, IBLA 89-228 (1991).
Rosati contended that the disturbed area of Daugherty's mine nearest Rosati's fence line was
not restored to AOC "as the contour remaining after backfilling and grading differs from the
original contour by more than 3 feet." The Board, citing to the legislative history, determined that
there was no requirement to return the disturbed area to the exact premining contour. They
noted that "while there was arguably a somewhat significant change in the slope of the mined
land immediately adjacent to appellant's fence line, the overall change in the slope across the
disturbed area from the fence line was much milder."
CONSOLIDATION COAL CO. v OSM, Docket No. CH 94-6-R (1994).
A citizen's complaint alleged that "Consolidation had constructed a diversion of an intermittent
stream which had caused significant change in the contour and land use." The NOV cited
Consolidated for the ditch and spoil placement that resulted in slopes that did not achieve AOC.
OSM disagreed with the Illinois Department of Mines and Minerals in the matter of AOC. The
Board, citing to OSM Directive INE-26, analyzed Illinois's AOC requirements, how they were
implemented with regard to the mined area and ruled that Illinois' determination that AOC had
been received was not arbitrary or capricious.
Illinois "employed its customary site-wide standard. In other words, it did not base its
decision on whether the Kadolph site looked almost identical post-mining as it had pre-mining. Rather, it compared the pre- and post-mining criteria over the 600 plus acre site."
CO-OP MINING CO. V OSM, Docket No. DV 94-4-R (1994).
Co-Op was cited for failing to use all available material to return disturbed areas to AOC by
eliminating highwalls and cuts. The Board ruled that "the preponderance of the evidence shows
that there are no highwalls, as that term is defined in the Utah program". In addition, the Board
found that the testimony of Co-Op's witnesses was more persuasive than OSM's witnesses. Co-Op's witnesses had knowledge of the original contour of the mined area and could provide
greater factual details.
WILLIAM H. PULLEN, JR. et al., 132 IBLA 224, IBLA 92-335 (1995).
Pullen challenged Phase I bond release claiming that the Jackson County Mining Corp. had
failed to backfill and grade the mined areas to AOC and remove all of the highwalls. The Interior
Board found that the "record established that the premining contours could never be fully
restored using the remaining material available to the permittee, especially given the swell' in the
replaced overburden and the void left by the removed coal." The Board decision quoted from the
ALJ's ruling which said that OSM requires "that the general configuration of the terrain following
reclamation be comparable' to the premining terrain" and that while there were "deviations",
none was "truly substantial". In addition, the ALJ found that no unreclaimed highwalls existed.
"[O]verall, such limited deviations are not considered violative of the requirement of AOC.
Indeed, even with these deviations, the general surface configuration of the land is
basically the same before and after mining and reclamation, as required by SMCRA."
MORGAN FARM, INC., 141 IBLA 95, IBLA 94-775 (1997). IN THE MATTER OF: MORGAN FARMS,
INC., Maryland Office Of Administrative Hearings Case No. 91-DNR-BOM-049-80 (1992).
Morgan Farms filed a citizen's complaint challenging the release of reclamation bonds covering
the Jones Coal Co. permit, alleging that Jones Coal had not returned the mined land to AOC: hills
and depressions existed where there had been level land prior to mining. Morgan Farms
"concerns included insufficient topsoil, steep slopes, and debris."
The Interior Board cited to the Maryland ALJ's determination that Morgan Farms failed to show
that the land had not been reclaimed to AOC, "that there were substantial deviations between
premining and postmining contours." The testimony of the permittee's witnesses convinced the
Maryland ALJ, and the IBLA, that when the "overall changes" in contour were considered, rather
than "changes in specific areas", the "highwalls and spoil piles had been eliminated, adequate
drainage attained, and the general topography of the reclaimed land" complimented and blended
into the surrounding terrain. he Maryland ALJ's ruling cites to OSM Directive INE-26 and the
decisions listed above.
COALEX STATE INQUIRY REPORT - 292, "HIGHWALL ELIMINATION & AOC: BLENDING IN'"
(1994).
This earlier Report discusses AOC from a similar perspective and includes a number of the
documents summarized above. Report - 292 includes additional relevant Interior decisions, OSM
directives and two prior Reports:
COALEX STATE INQUIRY REPORT - 16, "APPROXIMATE ORIGINAL CONTOUR" (1984)
investigates the legislative history of the phrase.
COALEX STATE INQUIRY REPORT - 56, "APPROXIMATE ORIGINAL CONTOUR" (1985)
provides earlier Interior administrative decisions defining AOC.
COALEX STATE INQUIRY REPORT - 190, "VARIANCE FROM AOC FOR PARTIAL MOUNTAINTOP
REMOVAL" (1991).
This Report includes some Interior administrative decisions and Federal Register preambles to
federal regulations regarding the issue in question.
ATTACHMENTS
A. Table of Survey Results
B. Table of Relevant Federal Regulations
C. Regulatory History
D. OSM DIRECTIVE, Subject No. INE-26, Transmittal No. 338, "Approximate Original
Contour" (Issued 5/26/87).
E. PETER J. ROSATI, 119 IBLA 219, IBLA 89-228 (1991).
F. CONSOLIDATION COAL CO. v OSM, Docket No. CH 94-6-R (1994).
G. CO-OP MINING CO. V OSM, Docket No. DV 94-4-R (1994).
H. WILLIAM H. PULLEN, JR. et al., 132 IBLA 224, IBLA 92-335 (1995).
I. MORGAN FARM, INC., 141 IBLA 95, IBLA 94-775 (1997).
J. IN THE MATTER OF: MORGAN FARMS, INC., Maryland Office Of Administrative Hearings
Case No. 91-DNR-BOM-049-80 (1992).
K. COALEX STATE INQUIRY REPORT - 292, "HIGHWALL ELIMINATION & AOC: BLENDING
IN'" (1994).
L. COALEX STATE INQUIRY REPORT - 16, "APPROXIMATE ORIGINAL CONTOUR" (1984).
M. COALEX STATE INQUIRY REPORT - 56, "APPROXIMATE ORIGINAL CONTOUR" (1985).
N. COALEX STATE INQUIRY REPORT - 190, "VARIANCE FROM AOC FOR PARTIAL
MOUNTAINTOP REMOVAL" (1991).
Survey and research were conducted by: Joyce Zweben Scall
SURVEY RESULTS
This comparison of state regulation sections to the federal rules was conducted using the state
regulatory program files in the COALEX Library. The material in the state regulatory program files
are current through 1991.
DEFINITION OF AOC found at 30 CFR 701.5
The language used to define AOC found in the regulations of these state programs are identical
to the language found in the federal rules:
Alabama Mississippi
Alaska Missouri
Arkansas Montana
Colorado New Mexico
Illinois Ohio
Indiana Oklahoma
Iowa Pennsylvania
Kentucky Texas
Louisiana Utah
Virginia
The language used to define AOC for these two states is similar, but not identical to that used
in the federal rules:
Maryland Wyoming
REQUIREMENTS FOR PERMITS FOR SPECIAL CATEGORIES OF MINING - MOUNTAINTOP
REMOVAL, 30 CFR 785.14
The requirements for mountaintop removal for these state programs are substantially the same
as the federal requirements:
Alabama Kentucky
Alaska Maryland
Arkansas New Mexico
Colorado Ohio
Illinois Oklahoma
Virginia
REQUIREMENTS FOR PERMITS FOR SPECIAL CATEGORIES OF MINING - VARIANCES FROM AOC
FOR STEEP SLOPE MINING, 30 CFR 785.16
The requirements for variances from AOC for these state programs are substantially the same
as the federal requirements:
Alabama New Mexico
Illinois Oklahoma
Indiana Pennsylvania
Iowa Virginia
Louisiana West Virginia
TABLE OF RELEVANT FEDERAL REGULATIONS
SECTION HEADER FEDERAL REGISTER SITE
Requirements for Permits:
30 CFR 785.14 Mountaintop Removal Mining 52 FR 39182 (Oct. 20, 1987)
30 CFR 785.15 Steep Slope Mining 51 FR 9006 (Mar. 17, 1986)
30 CFR 785.16 Variances from AOC for 56 FR 65612 (Dec. 17, 1991)
Steep Slope Mining
Performance Standards:
30 CFR 816.102 Backfilling & Grading: 57 FR 33874 (July 31, 1992)
General Requirements
30 CFR 816.104 Backfilling & Grading: 56 FR 65612 (Dec. 17, 1991)
816.105 Thin & Thick Overburden
30 CFR 816.106 Backfilling & Grading: 58 FR 3466 (Jan. 8. 1993)
Previously Mined Areas
30 CFR 816.107 Backfilling & Grading: 48 FR 41719 (Sept. 16, 1983)
Steep Slopes
[NOTE: 30 CFR Part 826, Operations on Steep Slopes. was removed May 24, 1983 (48 FR
23355).]
See the attached Regulatory History Table of these sections for a complete listing of relevant
Federal Register preambles to revisions of these rules.
