COALEX SIGNIFICANT ISSUE REPORT - 38
TOPIC: ELIMINATION OF HIGHWALLS
Sec. 515(b)(3) of the Surface Mining Control and Reclamation Act (SMCRA) requires that all
surface coal mining operations backfill, compact and grade the mine site in order to restore the
approximate original contour of the land, and eliminate all highwalls. The definition of
approximate original contour (AOC) in Sec. 701 of SMCRA also provides that all highwalls must be
eliminated.
The only explicit variance in SMCRA from the highwall elimination requirement is contained in
Sec. 527 which applies to Special Bituminous Coal Mines. That section allows variations from the
requirements for return to approximate original contour for a special class of mines and requires
only that "remaining highwalls are stable." (Sec. 527(c )) Other sections of SMCRA provide
variances from the requirements to return land to the approximate original contour (See Secs.
515(b)(3), (c )(2), (d)(2), and (e)), but do not provide an explicit variance from the requirement
to eliminate highwalls.
Given this statutory framework, the question arises as to what flexibility the states and OSM
have to consider variations from the requirements for highwall elimination. To analyze this issue
requires consideration of both the legislative history and approved regulations.
LEGISLATIVE HISTORY
The issue of highwall elimination was a hotly contested one in the development of SMCRA. The
final statutory language was not agreed upon until the House and Senate Conference in 1977,
which resulted in the drafting of P. L. 95-87.
Senate bill 7 would have provided a variance to the approximate original contour and highwall
elimination requirement for a wide range of postmining land uses. In addition, if "sound
engineering technology" indicated that the highwall could not be completely backfilled, then the
operator would have been required to reduce the highwall to the maximum extent consistent with
"sound engineering technology" and develop a revegetation plan that is "reasonably calculated: to
screen the remaining highwall within 5 years." The House bill included no such provision.
The final bill, agreed upon in conference, included some variances from AOC, but did not
include the highwall variances or the "sound engineering technology" provision of the Senate bill.
The Conference Report indicated that the final language providing AOC, but not highwall,
variances "amounts to a variance from the configuration aspects' of the regrading standard..."
and "would give an opportunity for a broad range of postmining land uses on those operations
which would result in a very wide bench accommodating both the stable and complete backfilling
of the highwall as well as additional areas for the planned land uses." (H.R. Rep. No. 95-493, S.
Rep. No. 95-337, 95th Cong., 1st Sess. 108-109 (1977))
Congress on the other hand, did indicate that where a superior land use would be obtained by
leaving a highwall and a bench, that the experimental practices provision of Sec. 711 of SMCRA
should apply on a case-by-case basis to allow exceptions from the approximate original contour
standard. (H.R. Rep. 95-718, 95th Cong., 1st Sess. 71 (1977))
The proponents of the highwall elimination requirement found support in a study, "The Design
of Surface Mining Systems in Eastern Kentucky Coal Fields," directed by the Kentucky Department
of Natural Resources and Environmental Protection and conducted by two consulting firms:
Mathematica,(Princeton, N.J.) and Ford, Bacon & Davis (New York, N.Y.). With respect to the
environmental impacts of conventional contour mining methods, the study states that:
"
[The] conventional methods employed always result in permanent fill bench - the result of
disposal of overburden on slopes below the coal seam. And, except where entire mountaintops
are removed, the conventional methods leave an exposed highwall after mining. These two
characteristics of conventional mining - the permanent fill bench and exposed highwall - are the
direct cause of many of the undesirable environmental effects of mining. Landslides occur when
the fill benches become unstable, erosion results from unvegetated outslopes, and exposed
highwall degrade esthetic values immediately following mining, at least."
The study concluded that the "Elimination of the highwall and permanent fill bench would, in our
opinion, significantly reduce the major remaining environmental impact of surface mining."
Following this recommendation, the House included the highwall elimination provisions in the bill
which later became SMCRA. (H.R. Rep. No. 55-218, 95th Cong., 1st Sess. 122-123 (1977))
FEDERAL COURT DECISIONS
The constitutionality of SMCRA was challenged in Hodel v Virginia Surface Mining Reclamation
Association, 452 U.S. 264 (1981). One of the questions raised in that case was whether the
steep slope sections of the Act which provide for return to the approximate original contour and
highwall elimination were constitutional.
In ruling on the issue, the U.S. Supreme Court found that the highwall provision was not on its
face unconstitutional. The Court did, however, leave open the question of whether the highwall
elimination requirement would be an unconstitutional taking under a specific circumstance. The
Court stated:
"Although we conclude that mere enactment' of the Act did not effect a taking of private
property, this holding does not preclude appellees or other coal mine operators from attempting
to show that as applied to particular parcels of land, the Act and the Secretary's regulations effect
a taking." (Id., at 304)
There have not been any additional Federal court decisions interpreting SMCRA's highwall
elimination requirements. Three cases are currently pending in Federal court. These are:
IN RE: PERMANENT SURFACE MINING RECLAMATION LITIGATION.
This case is a challenge to OSM's permanent program regulations. These regulations provide
some variances from the highwall elimination requirement. OSM's regulations are further
discussed below.
BUCKLEY MINING et al. v WATT.
This case is a challenge by Kentucky surface landowners and a coal mine operator to the
requirement to restore the approximate original contour with all highwalls eliminated. The
surface landowners requested that Buckley mine their land in a manner that, after completion,
would leave flat land suitable for residential development. The civil action seeks to enjoin OSM
from taking enforcement action and a declaration that SMCRA's highwall elimination requirement
violates the Fifth Amendment.
RIVER PROCESSING, INC. v CLARK.
This case is an appeal by a Kentucky operator from a decision of the Interior Board of Land
Appeals (IBLA) ruling that River Processing must eliminate all highwalls at the mine site. The
Board decision is significant since it overturned an ALJ decision which did not require complete
highwall elimination because the environmental harm that would result from requiring the
highwall elimination would be worse than leaving the highwall. The Board ruled that there was
no authority in SMCRA or in OSM's regulations for an evaluation of comparative harms to allow
highwall retention.
Other IBLA decisions that have ruled on the side of highwall elimination under a variety of fact
situations include:
LITTLE SANDY COAL SALES, 2 IBSMA 25 (1980).
The Board ruled that highwall elimination was a specific requirement of 30 CFR Sec. 715.14 and
must be complied with.
GRAFTON COAL CO., INC., 3 IBSMA 175 (1981).
The Board held that leaving a 525 foot long section of vertical rock face 3 to 12 feet in height
constituted a violation of 30 CFR Sec. 715.14, even though the highwall had apparently been
approved by the regulatory authority as part of a terrace.
TOLLAGE CREEK ELKHORN MINING CO., 2 IBSMA 341 (1980).
The Board ruled that highwalls must be completely eliminated even where retention of an
access road has been approved as part of the postmining land use and that compliance with the
state mining permit did not excuse noncompliance with the performance standard for highwall
elimination.
On the other hand, at least one Board decision held that under certain circumstances complete
elimination of highwalls would not be required. This case is the CEDAR COAL CO., 1 IBSMA 145
(1979). In that case the Board ruled that the requirements of 30 CFR Sec.. 715.14 apply only to
lands which are used, disturbed or redistributed in connection with or to facilitate mining under
SMCRA or OSM's regulations. They do not apply to previously mined lands on which "no adverse
physical impact" to a pre-existing highwall results from surface coal mining operations conducted
after the effective date of the interim program performance standards.
In the parallel case of MIAMI SPRINGS PROPERTIES, 2 IBSMA 399 (1980), the Board found
that the augering of a coal seam in a pre-existing highwall may make a permittee responsible for
returning the entire highwall to the approximate original contour. In this case, the Board applied
the criteria of "adverse physical impact" to determine that highwall elimination could be required.
FEDERAL REGULATIONS
OSM's permanent program regulations include the general provisions of SMCRA providing for
the return of mine sites to the approximate original contour and elimination of highwalls. In
addition to this general proscription, the regulations provide recognition of a potential that
highwalls may be acceptable under certain limited circumstances. These circumstances exist
primarily where the mining operation is remining abandoned mine lands.
In OSM's rules revising the permanent regulatory program for remining, exceptions are
recognized to the highwall elimination requirement in the backfilling and grading area where
there is insufficient spoil available from the remining operation to completely backfill the mine and
eliminate the highwall. Under such circumstances, the highwall must be eliminated to the extent
technically practical and other environmental standards met. (See 48 FR 41734 (SEPTEMBER 16,
1983)) A similar exception is provided under the revised auger mining regulations. (See 48 FR
19314 (APRIL 28, 1983))
Further, in accordance with the CEDAR COAL CO. decision, discussed above, the final OSM
regulations also recognize a highwall variance where the remining operation does not have an
"adverse physical impact" on a pre-existing highwall. (See 48 FR 41734 (SEPTEMBER 16, 1984))
Finally, the revised regulations allow the disposal of excess spoil on pre-existing benches
without the complete elimination of highwalls provided other standards are met. These
regulations also require highwall elimination to the maximum extent technically practical. (See 48
FR 32929 (JULY 19, 1983))
The legality of these regulations will be determined in the near future as part of the existing
challenge in the IN RE: PERMANENT SURFACE MINING REGULATION LITIGATION.
STATE REGULATIONS
Most state proposals to approve variances from the highwall elimination requirements have
been rejected in the program approval process by OSM. New Mexico's program contains a
notable exception from this general rule.
Under New Mexico's approved program, highwalls must be eliminated unless retention of
portions of the highwall is appoved by the Director. To obtain approval, the operator must
demonstrate that the highwall:
"Will have a static safety factor of 1.3;
Will not pose a hazard to persons or wildlife in the area;
Will be backfilled to cover the uppermost minable coal seam to a minimum depth of 4 feet;
The retained portion left standing shall not exceed 800 feet in length, and shall be at a minimum
of at lease 3,000 feet from any other portion of any gighwall which has been approved as part of
the postmining land use;
It is necessary to replace cliff type habitats that existed in the natural topography prior to mining;
and The ends of the highwall portions left standing will be contoured into the surrounding
topography with slopes of 3.1 or less. (N.M. Reg., Sec. 20-102)
OSM's approval of New Mexico's variance was based upon the natural topographic conditions in
the state.
