1. Purpose of This Report

The Office of Surface Mining's (OSM) Lexington Field Office (LFO) has prepared this oversight report on portions of the Kentucky surface mining program, which was conditionally approved on May 18, 1982, under the Federal Surface Mining Control and Reclamation Act of 1977 (SMCRA). The Kentucky Department for Surface Mining Reclamation and Enforcement (DSMRE), which administers the regulatory program in Kentucky, assisted OSM in gathering the data for this report, and also to some extent, contributed to the analysis. The conclusions and recommendations are, however, OSM's.

This document addresses mountaintop operations, that is, those surface mines that remove all or a large portion of a coal seam or seams running through the upper fraction of a mountain or ridge. The number of mountaintop operations has risen in recent years in central Appalachia, which may help explain the upsurge in the public's interest in such mines although the level in Kentucky has remained consistent. In response to the extensive public interest in mountaintop operations, OSM conducted special oversight studies of how the States of West Virginia, Kentucky, and Virginia administer the requirements relating to approximate original contour (AOC) and post-mining land uses associated with mountaintop removal and steep slope variances.

Many people categorize all mountaintop operations as "mountaintop-removal." However, legally speaking, mountaintop removal is only one of three types of mountaintop operations addressed in this report. (See Glossary for definitions.) The three types are: (1) mountaintop removal with a variance from approximate original contour (AOC), (2) mines which remove all of the coal seam or seams in the upper fraction of a mountain but which return the land to AOC, and (3) steep slope mines with or without an AOC variance. Under SMCRA, as well as both Federal and State regulations, all mines are required to return the mined land to AOC, unless a variance is granted by the regulatory authority. In Kentucky, that authority is DSMRE.

This report focuses on three kinds of issues:

• In situations where DSMRE has authorized a waiver from the AOC requirement, has it required the appropriate post-mining land uses?
• Which post-mining land configurations may DSMRE appropriately accept as constituting a return to AOC and which should it regard as requiring variances from the AOC requirement?
• How is spoil determined to be excess spoil and in what respects does the Kentucky program place restrictions on the amount and placement of excess spoil?

Conclusions and Recommendations

As discussed in more detail later in this report and as summarized briefly below, OSM has identified problems with the State's administration of program requirements relating to the size and placement of excess spoil fills, to the post-mining land uses appropriate to sites that have been granted variances from the AOC requirement, and to the findings the State must make in order to approve mountaintop removal and steep slope variances. In addition, the State has failed to adopt several necessary program amendments relating to its steep slope variance provision. Finally, DSMRE's computer system for tracking permits fails to differentiate between various types of mountaintop operations.

A. Approximate Original Contour and Variances

DSMRE approved some surface mining permits in the mountains of Eastern Kentucky that contained unnecessary or unjustified variances from the AOC requirement. In deciding whether AOC variances were necessary at these sites, DSMRE relied almost exclusively on an examination of the amount of overburden that the operator proposed to place back into the mined area and failed to give enough consideration to other relevant factors such as post-mining site configuration, site stability, and the adequacy of drainage controls. During the evaluation, OSM also observed that, in some cases, not much difference existed between mines which have received variances from the AOC requirement and those that are supposed to restore the land to AOC. That is, there was little difference between the final grading plans that DSMRE accepted as AOC for some mines and the final grading plans at other mines that DSMRE required to obtain variances from AOC. Finally, DSMRE issued a number of permits involving variances from AOC without requiring appropriate post-mining land uses for the sites. As explained in more detail below, permits involving mountaintop removal or steep slope mining operations with variances from AOC may be issued by the regulatory authority only if they will be capable of supporting the post-mining land uses specified in the State program.

To implement the AOC standard properly, DSMRE should take steps to insure that its permit reviewers, when they determine whether or not to approve variances, consider not just the amount of backfill but also site configuration, stability, and drainage. In addition, DSMRE should review all outstanding permits with AOC variances and reclassify any sites that have been inappropriately granted variances. In a letter dated June 23, 1999, DSMRE committed to develop a formal policy that better defines what is required to achieve AOC. Upon development of this new AOC policy, DSMRE also committed to review all permits issued with an AOC variance with a fish and wildlife post-mining land use.

B. Excess Spoil Fills

OSM found that, in a number of instances, DSMRE has given operators approval to construct fills for excess spoil that are either entirely unnecessary or that exceed the capacity necessary for the operation. OSM also found that construction problems with some fills have caused unnecessary impacts to headwaters and streams. DSMRE should revise its permitting practices to better insure that fill size is minimized. DSMRE should also take steps to insure that, before a permittee changes its method of mining, it obtains an appropriate modification of its permit, including revisions to the number and/or capacity of the fills. Finally, the State should adopt policies to eliminate the practice of "wing-dumping" in constructing excess spoil fills. The State should consider a policy that restricts the construction of fills in stages to begin in the upper portion of the watershed and to progress downstream only as necessary until the full capacity of the fill is achieved. This will avoid unnecessary impacts to the watershed where, after mining commences, the permittee changes its method of mining resulting in less excess spoil to be placed in fills.

C. Post-Mining Land Uses

In a number of cases involving mountaintop removal or steep slope AOC variances, DSMRE improperly granted permits that approved post-mining land uses not authorized by the State program. Prospectively, DSMRE has now reformed its policy regarding permissible post-mining land uses, but it still needs to address this problem in connection with previously-issued permits. DSMRE should conduct a comprehensive review to identify all operations that have been improperly issued either a mountaintop removal or a steep slope AOC variance. To insure that post-mining land uses allowed under the approved State program will be achieved prior to final bond release, DSMRE should then require revision of any permit that purports to authorize post-mining land use not provided in the approval State program.

In a number of instances, DSMRE issued mountaintop removal permits without obtaining the required assurances that the requested post-mining land use be obtainable according to data regarding expected need and market. Kentucky should immediately begin requiring this information.

D. Mine Classification and Inventory

OSM's oversight has been made difficult by several record keeping problems. First, with respect to outstanding permits, inconsistencies exist between the AOC variances requested by the applicants, the information actually supplied by the applicant, and the AOC variances that DSMRE ultimately granted. Second, the State's permit tracking system, the Surface Mining Information System (SMIS), does not currently contain any data fields for variance information. This omission made it impossible to obtain a reliable electronic inventory of mountaintop mining permitted to be restored to AOC, mountaintop mining permitted with an AOC variance, and steep slope mining permitted with an AOC variance.

DSMRE should conduct a comprehensive review of the 395 permits issued for mountaintop operations in Eastern Kentucky to consistently identify AOC variances granted based on the backfilling and grading information in the permit application and the AOC variances requested.

In addition, DSMRE should add data fields to SMIS for variance information and add this information for all existing permits.

E. Need for State Program Amendments

The approved Kentucky program does not specifically require applicants for steep slope variances to demonstrate that the total volume of flow from the proposed mine, during every season of the year, will not vary in any way that adversely affects the ecology of any surface water or of any existing or planned use of surface or groundwater, and that the plan must be approved by the "appropriate State environmental agency." As soon as possible, DSMRE should submit a program amendment that sets out this requirement. In a letter dated June 25, 1999, DSMRE committed to file a Notice of Intent by August 15, 1999, to initiate State rulemaking to satisfy this requirement and anticipated completing that process in eight months.

F. Permit Findings

DSMRE has been using an Affirmative Findings - Issuance/Denial Checklist to document permit applicants' compliance with the regulatory requirements for mountaintop removal and steep slope AOC variance. At least in its present form, this checklist fails to adequately assure that applicants have fully satisfied the pertinent requirements. Specifically, DSMRE should modify its findings checklist to include the specific finding required by 405 Kentucky Administration Regulations (KAR) 8:050, Section 4, for a mountaintop removal AOC variance, the specific finding required by 405 KAR 8:050, Section 6, for a steep slope AOC variance, and to include some reference to the relevant portions of the permit application that support these findings. DSMRE has agreed to review all of its findings documents.

EXECUTIVE SUMMARY ii

1. Purpose of This Report ii

• Conclusions and Recommendations iii

A. Approximate Original Contour and Variances iii

B. Excess Spoil Fills iv

C. Post-Mining Land Uses iv

D. Mine Classification and Inventory iv

E. Need for State Program Amendments v

F. Permit Findings v

CHAPTER A: AN EVALUATION OF APPROXIMATE ORIGINAL CONTOUR AND POST-MINING LAND USE IN KENTUCKY A-1

1. Introduction A-1

2. Federal Requirements A-2

• General Approximate Original Contour Requirements A-2
• Statute A-2
• Legislative History A-3
• Office of Surface Mining's Treatment of Approximate Original Contour in Rules A-6

B. Federal Requirements Pertaining to Mountaintop Removal Mining Operations A-7

C. Federal Requirements Pertaining to Steep Slope Mining Operations A-8

3. State Program Requirements A-9

A. General Approximate Original Contour Requirements A-9

• State Requirements Pertaining to Mountaintop Removal

Mining Operations A-10

• State Requirements Pertaining to Steep Slope Mining

Operations A-11

4. Review Methodology A-15

• Site Selections A-16

• Lexington Field Office Work Plan A-16

• Review Standard A-18

5. Findings and Analysis A-22

A. Approximate Original Contour and Variances A-22

1. Policy A-22

2. Permit Decisions and Site Observations A-22

B. Excess Spoil Fills A-25

• Excess Spoil Fills and Fill Capacity A-26
• Observed Construction Concerns A-27

C. Post-Mining Land Uses A-27

• Mine Classification and Inventory A-29

• Need for State Program Amendments A-30

• Permit Findings A-30

6. Conclusions and Recommendations A-50

A. Approximate Original Contour and Variances A-50

B. Excess Spoil Fills A-50

C. Post-Mining Land Uses A-51

D. Mine Classification and Inventory A-51

E. Needed Program Amendment A-51

F. Permit Findings A-52

ACRONYMS A-53

GLOSSARY A-54

• State Program A-54

2. Approximate Original Contour A-54

3. Types of Mining Applicable to This Report A-55

4. Mining-Related Terms A-56

CHAPTER B: MINE SITE EVALUATION REPORTS, CROSS-SECTIONS, AND PHOTOGRAPHS B-1

1. Martiki Coal Corporation B-3

• Star Fire Mining Company B-25
• Addington Mining, Inc. (Breathitt/Perry Counties) B-61
• Addington Mining, Inc. (Pike County) B-69
• Appolo Fuels, Inc. B-79
• Branham & Baker Coal Company, Inc. B-87
• Jericol Mining, Inc. B-97
• Leslie Resources B-105
• Lodestar Energy, Inc. B-113
• Martin County Coal Corporation B-123
• Pine Branch Coal Sales, Inc. B-131
• Premier Elkhorn Coal Company B-139
• Straight Creek Coal Resources Company B-147
• Sunny Ridge Mining Company, Inc. (Marrowbone Creek) B-155
• Delta Machinery Company, Inc. B-165
• Gatliff Coal Company B-173
• Mountain-Clay, Inc. B-181
• PanBowl Energy Company B-189
• Richardson Fuel, Inc. B-199
• Sunny Ridge Mining Company, Inc. (Meathouse Fork) B-207

APPENDIXES

Appendix I: Office of Surface Mining Directive INE-26, Approximate Original Contour APP-I

Appendix II: Lexington Field Office Work Plan and Kentucky Study Forms APP-II

Appendix III: Sample Selection and Site Selection Letter by the Department for

Surface Mining Reclamation and Enforcement APP-III

Appendix IV: Approximate Original Contour and Variance Inventory APP-IV

Appendix V: Post-Mining Land Use Letters APP-V

Appendix VI: Kentucky's Affirmative Findings APP-VI

Appendix VII: Department for Surface Mining Reclamation and Enforcement

Commitments APP-VII

1. Introduction

The Federal Surface Mining Control and Reclamation Act of 1977 (SMCRA) establishes a program of cooperative federalism that allows States such as Kentucky to enact and administer their own regulatory programs within limits established by Federal minimum standards and with oversight authority by the Department of the Interior. See H.R. Rep. 218, 95th Cong., 1st Sess. at 57 (1977), reprinted in 1977 U.S. Code Cong. & Admin. News 593, 595; Hodel v. Virginia Surface Mining and Reclamation Association, 452 U.S. 264, 289 (1981). In SMCRA's findings section, Congress explained its decision to offer each state "primary jurisdiction" or "primacy" in this area:

because of the diversity in terrain, climate, biologic, chemical and other physical conditions in areas subject to mining operations, the primary governmental responsibility for developing, authorizing, issuing, and enforcing regulations for surface mining and reclamation operations subject to this chapter should rest with the States[.]

30 U.S.C.§ 1201(f).

Primacy does not, however, grant a state absolute authority to regulate surface coal mining without any Federal involvement. Section 503 of SMCRA requires that state rules and regulations be "consistent with regulations issued by the Secretary pursuant to [SMCRA]." 30 U.S.C. § 1253(a)(7). Further, Section 505(b) of SMCRA provides that "[a]ny provision of any State law or regulation . . . which provides for more stringent land use and environmental controls and regulations" than does SMCRA or the Federal rules "shall not be construed to be inconsistent" with SMCRA. 30 U.S.C.§ 1255(b).

Because Kentucky has a state program approved under Section 503 of SMCRA, see 30 (Code of Federal Regulations (C.F.R.) Part 917, its actions must be evaluated for consistency with that program. At the same time, however, if it becomes apparent that some aspect of the approved program is inconsistent with SMCRA, it is incumbent upon the Office of Surface Mining (OSM) to address that situation. If, for example, State program provisions are found to be less effective than the Federal requirements, OSM can require the State to amend its program in accordance with 30 C.F.R. § 732.17. In this report, consequently, OSM has evaluated the way in which the Kentucky Department for Surface Mining Reclamation and Enforcement (DSMRE) administers the requirements relating to approximate original contour (AOC) and post-mining land uses associated with mountaintop removal and steep slope AOC variances for consistency with its approved State program. It has also reviewed the State program requirements to determine if they are consistent with Federal requirements.

In order to evaluate DSMRE's administration of requirements related to AOC and post-mining land use and to determine whether Kentucky requirements are consistent with SMCRA, OSM reviewed a representative sample of 29 permits for 20 mines. OSM has focused its evaluation on (1) gathering data that might be useful in understanding how AOC is determined in Kentucky and determining whether or not additional guidance in making AOC determinations may be necessary, (2) determining the appropriateness of the post-mining land use when an AOC variance was granted by the State, and (3) determining how excess spoil is calculated and to what extent do Kentucky mining operations restrict placement of excess spoil.

If you would like to discuss this oversight report, please contact William J. Kovacic, Lexington Field Office (LFO) Field Office Director, at (606) 233-2894, or you may write to him at OSM, 2675 Regency Road, Lexington, Kentucky 40503. This report will be included in Kentucky's oversight file for 1999 and will be available for public review at LFO in Lexington, Kentucky.

2. Federal Requirements

A. General Approximate Original Contour Requirements

1. Statute

Section 701(2) of SMCRA defines approximate original

contour to mean, that surface configuration achieved by backfilling and grading of the mined area so that the reclaimed area, including any terracing or access roads, closely resembles the general surface configuration of the land prior to mining and blends into and complements the drainage pattern of the surrounding terrain, with all highwalls and spoil piles eliminated; water impoundments may be permitted where the regulatory authority determines that they are in compliance with Section 515(b)(8) of this Act.

30 U.S.C. § 1291(2).

Section 515 of SMCRA sets forth environmental protection performance standards applicable to surface coal mining operations. 30 U.S.C. § 1265. Among these is the requirement to return the land to AOC--pursuant to Subsection 515(b)(3), mine operators must "backfill, compact . . ., and grade in order to restore the approximate original contour of the land with all highwalls, spoil piles, and depressions eliminated." 30 U.S.C. § 1265(b)(3).

• Legislative History

The legislative history of SMCRA shows that Congress intended to provide considerable flexibility with respect to what surface configuration would satisfy the statutory requirement for AOC restoration. The Committee Report on the House version of SMCRA, which contained the definition of AOC that was enacted into law, stated:

H.R. 2 requires that a minesite be regraded to AOC. Moreover, the regrading standard of H.R. 2 was formulated to cover all types of mining operations under all conditions. Thus it is, of necessity, a flexible standard which contemplates different mining circumstances. The bill's critics have alleged, to the contrary, that the term "approximate original contour" imposes an overly rigid and impractical requirement. It should be emphasized, therefore, that a reasonable interpretation of H.R. 2 cannot justify the assertion that the bill requires either the impossible task of restoration of the original contour or the useless act of digging a pit to obtain fill material to achieve full restoration of the original topography.

H.R. Rep. No. 95-218, at 96 (1977).

Since the enactment of SMCRA, OSM has recognized that, in primacy States, the State regulatory authority has the primary responsibility for interpreting what constitutes AOC at a given mine site during the permitting process. See 30 U.S.C. § 1201(f), quoted supra in the Introduction.

An important AOC issue, however, is to what extent a post-mining change in land elevation, slope, relief, or configuration constitutes a departure from AOC. Our research to date into SMCRA's legislative history has indicated that the primary element of AOC is configuration or shape. The House Committee Report mentioned both configuration and elevation, but gave primary emphasis to configuration:

As defined in the bill, approximate original contour means:

That surface configuration achieved by backfilling and grading of the mine area so that the reclaimed area, including any terracing or access roads, closely resembles the general surface configuration of the land prior to mining and blends into and complements the draining pattern of the surrounding terrain, with all highwalls and spoil piles eliminated * * *.

The term contour is defined by the dictionary as "the outline of a figure or body, with a line or lines representing such an outline." The contour of ground is similarly defined as the outline of the surface of the ground with respect to its undulations. These two definitions primarily refer to the shape or configuration of a surface. In addition, with respect to mapping, contour takes on an additional meaning; the imaginary line connecting the points on the land surface that have the same elevation and the line representing such line on a map or chart. In order to understand this concept it is necessary to distinguish between the two dimensions of elevation and configuration.

Id. at 97.

The Committee went on to give a number of examples of what the Committee meant by AOC. Id. at 97-103. In each of these, the emphasis was on configuration as the primary element.⁽¹⁾

Our examination of the legislative history of SMCRA has disclosed no statements indicating that a change in elevation, by itself, constitutes a departure from AOC. Instead, on several occasions during the debate on SMCRA and its precursors, the bill's sponsors gave assurances that the AOC requirement did not mandate a return to original elevation. Usually, these statements were made in response to charges that a return to AOC, as required by SMCRA, would be impossible. For example, during the floor debate on H.R. 25, a direct precursor of SMCRA, Representative Clausen of California, one of the principal sponsors of the bill, emphasized that AOC did not mandate a return to original elevation:

In addition, the bill requires that lands be returned to the approximate original contour and requires they be covered by vegetation. The land must come as close to resembling its pre-mining appearance as possible. It is important to point out that this requirement is not intended to require restoration of mined lands to their original elevation, but to a similar configuration.

121 Cong. Rec. 6676, 6686 (March 14, 1975)(floor debate on H.R. 25) (emphasis added).

During the same debate, Congressman Ruppe of Michigan, who played a key role in SMCRA's enactment, also emphasized that it did not mandate a return to original elevation:

However, we plainly realize that the lands which will be mined vary in terms of their physical characteristics, and as a result we have provided rational flexibility. We do not mandate that the mined land be returned to exactly the same shape as it was prior to mining. What the committee has obliged operators to do is to return the land to its "approximate original contour." It should be emphasized here once again, as I have attempted to do many times in the past, that "approximate original contour" does not mean that the land must be returned to original elevation. This would be patently ridiculous in the case of a thick seam of coal covered by a relatively thin stratum of overburden. When this coal is mined, it will create a depression that could not be returned to the original elevation without hauling an enormous amount of materials from some other location, thereby creating a similar depression elsewhere. Therefore, the committee bill requires that the coal operator regrade the mined area inside and around the perimeter of the mined area so that the depression blends into the surrounding terrain, and that within the mined area, the surface of the land "closely resembles" its pre-mining configuration.

Id. at 6888. See also Additional Views of Cong. Ruppe, Clausen, and Lagomarsino, H.R. Rep. No. 94-45, at 152 (94th Congress, 1st Sess. 1975) ("First, approximate original contour as it applies to thick seam area mining in the West is not intended to require that the mined site be returned to its original elevation. Original elevation simply often cannot be obtained. . . . It must be emphasized that the requirement to return to approximate original contour does not necessarily mandate the attainment of original elevation."); 120 Cong. Rec. 23650, 23659 (July 17, 1974) (floor debate on H.R. 11500, another SMCRA precursor); ("Now approximate original contour does not mean original elevation or that every bump on the landscape must be restored.").

While this legislative history is helpful, much of it focuses on thin and thick overburden situations, rather than mountaintop-removal and steep-slope mining operations, and it does not clearly state what a regulatory authority must consider when making AOC determinations. Subsection 515(b)(3) of SMCRA specifically exempts thin and thick overburden situations from the requirement to restore the AOC.

• Office of Surface Mining's Treatment of Approximate Original Contour in Rules

In its national regulations and in approving individual State programs, OSM adopted the statutory definition of AOC essentially unchanged. In the development of national regulations, the only discussion where elevation change was mentioned in relation to AOC is in the preamble to the rules regarding thick or thin overburden. The permanent program rules promulgated in 1979 defined thin overburden as overburden where the final thickness is less than 0.8 times the initial thickness and thick overburden as overburden where the final thickness is greater than 1.2 times the initial thickness. The preamble stated:

The definition of approximate original contour states that the reclaimed area should closely resemble the general surface configuration of the land prior to mining. OSM interprets this to mean that the approximate original contour, or configuration, of the pre-mining land is intended, and minor changes in elevation are anticipated.

44 Fed. Reg. 15231 (March 13, 1979).

Thus, an elevation change of plus or minus 20 percent was accepted as AOC in those rules.

In 1983, those numerical limits were deleted from the thick and thin overburden rules. See 48 Fed. Reg. 23356, 23365 (May 24, 1983). In 1988, the D.C. Circuit upheld the remand of those rule changes because the Secretary had failed to explain his reasons for removing the numerical limits. National Wildlife Federation v. Hodel, 839 F.2d 694, 734 (D.C. Cir. 1988). In 1991, OSM again published rules addressing thick and thin overburden. The preamble contains cross-sections showing elevation changes of greater than plus or minus 20 percent that would still be considered AOC. With this rule, OSM declined to set a numerical limit and asserted that the issue was best left to the State regulatory authority. See 56 Fed. Reg. 65629-95633 (December 17, 1991).

In 1987, OSM issued Directive INE-26 (see Appendix I) to provide guidance to OSM field personnel in evaluating AOC issues during oversight. The directive makes three points with respect to AOC. First, because both the permittee and the regulatory authority (as well as other interested parties) need a clear understanding prior to mining of what the final post-mining topography will be, the anticipated post-mining topography must be determined in the permitting process to enable a determination if AOC will be achieved. Second, inspections should ensure that the approved post-mining topography is being reasonably achieved, including general surface configuration, drainage, and elimination of highwalls and spoil piles. Third, in oversight, considerable deference should be given to prior decisions by the State, particularly where the final grade work has been done. In recognition of the emphasis that the 1987 directive places on the role of the permitting process in applying AOC requirements to specific operations, the current review looked to see what DSMRE was accepting as meeting AOC requirements in the permitting process.

B. Federal Requirements Pertaining to Mountaintop Removal Mining Operations

Section 515 of SMCRA contains specific performance standards for mountaintop removal mining. Subsection 515(c) permits an exception to the AOC restoration requirement for mountaintop removal operations which, after reclamation, would be capable of supporting specific post-mining land uses. In such operations, instead of restoring the site to AOC, the operator removes the entire coal seam or seams running through the upper fraction of a mountain, ridge, or hill, by removing all of the overburden and creating a level plateau or a gently rolling contour with no highwalls remaining. 30 U.S.C. § 1265(c). Subsection 515(c)(3) lists the allowable post-mining land uses: "industrial, commercial, agricultural, residential or public facility (including recreational facilities) use[s]." 30 U.S.C. § 1265(c)(3). In demonstrating the feasibility and practicability of the proposed post-mining land use, the applicant must include specific plans and show that the use will be:

(i) compatible with adjacent land uses;

(ii) obtainable according to data regarding expected need and market;

(iii) assured of investment in necessary public facilities;

(iv) supported by commitments from public agencies where appropriate;

(v) practicable with respect to private financial capability for completion of the proposed use;

(vi) planned pursuant to a schedule attached to the reclamation plan so as to integrate the mining operation and reclamation with the post-mining land use; and

(vii) designed by a registered engineer in conformance with professional standards established to assure the stability, drainage, and configuration necessary for the intended use of the site.

30 U.S.C. § 1265(c)(3)(B).

The Federal regulations pertaining to mountaintop removal operations are found at 30 C.F.R. § 785.14 and Part 824. The regulations generally track the language of SMCRA, but do clarify the applicable requirements in the following respects:

• A requirement for compliance with the alternative post-mining land use provisions of 30 C.F.R. § 816.133(a) through (c) [30 C.F.R. § 824.11(a)(4)];

• A specification that final graded slopes on the plateau portion of the operation not exceed 1v:5h (20 percent) [30 C.F.R. § 824.11(a)(7)];

• A requirement that plateau outslopes attain a minimum static safety factor of 1.5 or that they not exceed 1v:2h (50 percent) [30 C.F.R. § 824.11(a)(7)];

• A requirement that the resulting level or gently rolling contour be graded to drain inward from the outslope [30 C.F.R. § 824.11(a)(8)]; and

• A clarification that the prohibition on damage to natural watercourses applies only to watercourses below the lowest coal seam to be mined [30 C.F.R. § 824.11(a)(9)].

C. Federal Requirements Pertaining to Steep Slope Mining Operations

Subsection 515(d) of SMCRA specifies additional requirements for "steep-slope surface coal mining." The term "steep slope" is defined at Subsection 515(d)(4) as "any slope above twenty degrees or such lesser slope as may be defined by the regulatory authority after consideration of soil, climate, and other characteristics of a region or State." 30 U.S.C. § 1265(d) (4). When mining on such slopes, no spoil, abandoned or disabled equipment, debris or waste materials may be placed downslope below the bench or mining cut; the operator may not disturb the land above the top of the highwall unless it is found that such disturbance will facilitate compliance with the Act's environmental protection standards; and complete backfilling with spoil material is required to "cover completely the highwall and return the site to approximate original contour . . . ." 30 U.S.C. § 1265(d).

As provided in Subsections 515(e)(1) and (e)(2) of SMCRA, a variance from AOC for a steep slope mining operation is allowed if the owner of the property requests it in writing as part of the permit application; the watershed control of the area is improved; the potential use of the affected land is deemed to constitute an "equal or better economic or public use;" and the proposed use is designed and certified by a qualified registered professional engineer in conformance with professional standards established to assure the stability, drainage, and configuration necessary for the intended use of the site. 30 U.S.C. § 1265(e)(1) and (e)(2). Subsection 515(e)(2) further specifies that these variances from AOC must be for operations that will render the land suitable, after reclamation, "for an industrial, commercial, residential or public use (including recreation facilities)." 30 U.S.C. § 1265(e)(2).

The Federal regulations relating to steep-slope mining operations are found at 30 C.F.R. §§ 785.15, 785.16, 816.107/817.107, and 816.133(d)/817.133(d). The regulations generally track the language of SMCRA, but do clarify the applicable requirements in the following respects:

• Steep-slope mining operations must comply with the alternative post-mining land use provisions of 30 C.F.R. §§ 816.133(c) and (d) and 817.133(c) and (d) [30 C.F.R. § 785.16(a)(2)];

• The watershed of lands within the proposed permit area and adjacent areas will be improved by the steep-slope mining operation if the amount of total suspended solids or other pollutants discharged into surface or ground waters will be reduced or flood hazards within the watershed will be reduced by a reduction in peak flow discharges; the total volume of flow will not vary in a way that adversely affects surface waters or any existing planned use of surface or ground water; and the appropriate State environmental agency approves the plan [30 C.F.R. § 785.16(a)(3)];

• All highwalls must be completely eliminated with spoil material in a manner which results in a static safety factor of at least 1.3 [30 C.F.R. §§ 816.133(d)(7) and 817.133(d)(7)]; and

• Only that amount of spoil necessary to achieve the post-mining land use and ensure the stability of the retained spoil may be placed off the mine bench [30 C.F.R. §§ 816.133(d)(8) and 817.133(d)(8)].

3. State Program Requirements

A. General Approximate Original Contour Requirements

State law requires, with exceptions, that mined lands be returned to their AOC. AOC is defined in Kentucky Revised Statutes (KRS) 350.010 as, "that surface configuration achieved by backfilling and grading of the mined area so that the reclaimed area, including any terracing or access roads, closely resembles the general surface configuration of the land prior to mining and blends into and complements the drainage pattern of the surrounding terrain, with all highwalls and spoil piles eliminated; water impoundments may be permitted where the cabinet determines that they are in compliance with KRS 350.455." The statute essentially repeats the SMCRA definition of AOC. The exceptions, i.e., formal variances from AOC, are addressed in KRS 350.445 and KRS 350.450.

Table A-1 contains a summary of the State's requirements relating to AOC and the mountaintop removal and steep slope AOC variances that are allowed under the Kentucky approved program.

During the permitting process, applicants must identify the pre-mining and post-mining topography and indicate whether they are requesting a variance from AOC. Depending on the mining plan, operators can obtain either a mountaintop removal permit or in steep slope areas (greater than 20 degrees) a permit containing a steep slope AOC variance.

• State Requirements Pertaining to Mountaintop Removal Mining Operations

405 KAR 8:050 Section 4 of the KAR provides that an AOC variance may be granted for the surface mining of coal,

"where the mining operation removes an entire coal seam or seams running through the upper fraction of a mountain, ridge, or hill ... by removing substantially all of the overburden off the bench and creating a level plateau or a gently rolling contour, with no highwalls remaining, and capable of supporting (certain) post-mining land uses . . ." (emphasis added)

As illustrated in Table A-2, the allowable post-mining land uses for mountaintop removal operations approved under the Kentucky program include:

• industrial
• commercial
• agricultural
• residential, or
• public facility (including recreational facilities)

Pursuant to 405 KAR 8:050 Section 4, the State may grant a permit with a mountaintop removal AOC variance if it first finds, in writing, that the following requirements are met:

• the proposed post-mining land use of the lands to be affected will be an industrial, commercial, agricultural, residential, or public facility (including recreational facilities) use;
• the proposed post-mining land use constitutes an "equal or better economic or public use" of the affected land compared with the pre-mining use;
• local, State, and Federal land planning agencies have been provided an opportunity to comment on the proposed land use;
• the application contains specific plans and assurances that the proposed use will be (1) compatible with adjacent land uses; (2) obtainable according to data regarding expected need and market; (3) assured of investment in necessary public facilities; (4) supported by commitments from public agencies where appropriate; (5) practicable with respect to financing and completion of the proposed use; (6) planned pursuant to a schedule that will integrate the mining operation and reclamation with the post-mining land use; and (7) designed by a registered engineer in accordance with professional standards to assure the stability, drainage, and configuration necessary for the intended use of the site;
• the proposed use would be consistent with adjacent land uses and existing State and local land use and existing State and local land use plans and programs;
• the applicant has demonstrated that, in place of restoring the land to AOC, the operation will be conducted in compliance with the mountaintop removal performance standards at 405 KAR 20:050;
• the requirements of 405 KAR 20:050 are made a specific condition of the permit;
• all other requirements of the State Act and regulations are met; and
• the permit is clearly identified for being mountaintop removal mining.

The Kentucky regulations pertaining to mountaintop removal operations are found at 405 KAR 8:050 Section 4 and 405 KAR 20:050. These regulations track the language of the Federal program including the following respects:

• the applicant demonstrates compliance with the requirements for acceptable alternative post-mining land use of 405 KAR 16:210;
• a specification that final graded slopes on the plateau portion of the operation do not exceed 1v:5h (20 percent);
• a requirement that plateau outslopes attain a minimum static safety factor of 1.5 or that they not exceed 1v:2h (50 percent);
• a requirement that the resulting level or gently rolling contour be graded to drain inward from the outslope; and
• the State regulation clarifies that the prohibition on damage to natural watercourses applies only to watercourses below the lowest coal seam to be mined.

• State Requirements Pertaining to Steep Slope Mining Operations

405 KAR 8:050 Sections 5 and 6 and 405 KAR 20:060 of the KAR contain requirements governing steep slope mining. State law provides that DSMRE may issue a permit with a variance from AOC for surface mining on slopes greater than 20º when the watershed of the area is improved and all backfilling and grading is completed with all highwalls eliminated.

According to 405 KAR 20:060, the State may grant a variance from the requirements for restoring mined lands in steep slope areas to AOC only if:

• the permit area is located on slopes that exceed an average of 20º;
• all highwalls are completely backfilled in a manner which results in a static safety factor of 1.3;
• only spoil not necessary to achieve the post-mining land use is removed from the mine bench;
• the watershed of the permit and adjacent areas will be improved by reducing pollutants to ground and surface waters and reducing flood hazards;

• appropriate Federal, State, and local governmental agencies have been provided an opportunity to comment on the proposed post-mining land use and have deemed it to be "equal or better economic or public use;"
• the proposed use is designed and certified by a registered professional engineer to assure stability, drainage, and configuration necessary for the intended use of the site; and
• the landowner has requested in writing that a variance be granted to achieve the proposed alternative post-mining land use.

On December 31, 1990, OSM found that the Kentucky steep slope regulations failed to contain a comparable provision to the Federal regulations that required the State to identify the appropriate State environmental agency to approve the surface and groundwater plan (55 Federal Register pages 53490 through 53510). OSM disapproved Kentucky's steep slope regulation at 405 KAR 20:060 Section 3(3)(b). The disapproval was that the regulation must clarify that the total volume of the flow from the proposed mine area, during every season of the year, will not vary in any way that adversely affects the ecology of any surface water or any existing or planned use of surface or groundwater. Furthermore, the steep slope variance plan is to be approved by the appropriate State environmental agency. Kentucky's regulations did not explain how this regulation will be implemented and who was approving the plan. On March 4, 1991, William J. Grable, DSMRE Commissioner, agreed that the changes to this regulation were warranted, and that the State planned to submit appropriate program modifications. No state program amendment has been submitted.

TABLE A-2
Approvable Post-Mining Land Uses in Kentucky
Mining Type	A	B	C	D	E	F	G	H
Mines w/o AOC Variance	X	X
Steep Slope Mines w/AOC Variance			X	X		X		X
Mountaintop Removal Mines w/AOC Variance		X	X	X	X	X	X
A. Pre-Mining Use B. Equal or Better Economic or Public Use C. Industrial D. Commercial E. Agricultural				F. Residential G. Public Facility (including Recreational Facilities) H. Public Use (including Recreational Facilities)

4. Review Methodology

Beginning in 1997, the public and media began to focus increasing attention on "mountaintop operations" in Central Appalachia. Commonly understood, this term ("mountaintop operations") refers to any operation that removes all or part of the top of a mountain or ridge and places the overburden or excess spoil resulting from the removal into excess spoil fills. As used in this report, the broad term "mountaintop operations" should be distinguished from the narrower term "mountaintop removal (AOC variance) operations" (see category A below).

In this evaluation, the following three types of mining practices are included in the term "mountaintop operations:"

A. "Mountaintop removal (AOC variance) operations" - Mines which remove all of the coal seam or seams in the upper fraction of a mountain or ridge and request a mountaintop removal variance from AOC. Only this kind of operation constitutes a mountaintop removal mine in the regulatory sense.

B. Mines which remove all of the coal seam or seams in the upper fraction of a mountain or ridge and return the land to AOC.

C. Mines in steep slope areas (slopes exceeding 20º) which have received steep slope AOC variances according to State records. These sites were included in the evaluation for comparison with mines in category A.

Notwithstanding these regulatory definitions, OSM recognizes that the public's concern is not confined to any one of these mining scenarios, but encompasses all three. Accordingly, this report addresses all three types of mines.

In order to document the scope and scale of mountaintop operations, OSM collected information from all permits authorizing surface mining activities in Eastern Kentucky for which DSMRE still held part or all of the reclamation performance bond. The study area encompassed thirty counties in Eastern Kentucky, the mountainous region of the State.

As the information presented in Table A-3 and Figures 1 and 2 shows, OSM identified 395 permits issued since 1982 (the year of program approval) that include all types of mountaintop operations. In 1984, all existing permits were transitioned to permanent program standards and re-permitted. Therefore, the larger numbers of permits and acreage for 1984 does not mean that an increase in mountaintop mining occurred in that year. The data in Figures 1 and 2 show only minor annual fluctuations in both the number of permits issued as well as the acreage permitted for mountaintop mining since 1984.

The Eastern Kentucky coalfields are located in 30 counties consisting of 7.2 million acres of land. There are presently 2,295 permanent program permits with 1,361,145 permitted acres in these counties. Of these, there are a total of 936 permits for surface mining operations representing 386,945 acres permitted. This number includes all types of surface mining permits, i.e., contour, remine, auger, area, mountaintop removal, and any combination of these mine types.

The total acreage in Eastern Kentucky for both mountaintop removal and steep slope variances is 88,653 acres, representing 395 permanent program permits. Of these 395 permits, 219 are in an active status; 149 have had either a Phase I or a Phase II bond release; and the status of the remaining 27 varies. The acreage covered by these 395 permits represents approximately 1.2 percent of the land area in the 30 counties that make up the Eastern Kentucky coal field. This represents 6.5 percent of permitted acreage and approximately 17.2 percent of all permanent program permits in the Eastern Kentucky coal field.

A. Site Selections

The mountaintop mining operations in Eastern Kentucky consist of two large dragline operations, a series of surface mine complexes that are mining mountaintops and ridgelines, and several multiple seam contour mines that surface mine some points and ridgelines. (See Appendix III.)

A total of 30 sites were selected by OSM and DSMRE for this study. OSM selected 24 permits from the largest surface mining operations in Eastern Kentucky, and DSMRE recommended that six additional individual permits be included in the review. Of the 24 permits selected by OSM, all 12 permits for the only two large dragline operations in Eastern Kentucky were included. OSM made this decision because of the substantial acreage affected by mining at these two operations and because of the dramatic impact to the terrain caused by the removal of the material above the coal seams by the draglines. For the remainder of the permits studied, OSM, after reviewing the permit information, identified the 12 multiple-permit complexes that appear to authorize the largest surface disturbances. OSM selected one permit from each of these 12 complexes for this study. Because one of the permits at a dragline operation was for a coal processing refuse site, it was dropped from the study. Therefore, 29 sites were the basis of this evaluation.

B. Lexington Field Office Work Plan

The OSM LFO staff were responsible for conducting the actual permit reviews, as well as for developing this report. DSMRE staff accompanied OSM on each field investigation and provided information as requested.

In evaluating operations which had been granted AOC variances, OSM reviewed permit documents to determine whether or not they had satisfied all State program requirements relating to AOC variance approvals and post-mining land use changes. In evaluating operations where the site was to be returned to AOC, OSM reviewed permit files to determine how the approved mining maps and plans documented compliance with State AOC provisions and, if applicable, with alternative post-mining land use requirements.

OSM conducted field investigations on all the sites selected for this study. For each permit that requested and received an AOC variance, the onsite evaluation determined whether the final surface configuration of the permit area was consistent with the approved permit. The onsite evaluation also considered whether or not the alternative post-mining land use was in development, or had been achieved according to the plans and schedule required by the approved State program. For those sites that are to be returned to AOC (that is, permits indicated on the permit issue sheet that no AOC variance was received, field investigations evaluated current site conditions and OSM photographed each site. OSM obtained a representative cross-section of pre-mining and post-mining land configurations either from company data, where available, or site surveys. Chapter B of this report shows cross-sections and the photographs compiled by the review team for each of the 29 sites.

Permit data was collected to answer the following questions:

1. In the permit application, did the applicant propose to mine an entire coal seam (outcrop to outcrop) in the upper portion of a mountain?

2. Was the mining proposed in an area 20 or steeper and would it create a highwall that was to be eliminated during reclamation?

3. On the permit issue sheet or "face" sheet for each permit, did the State indicate that it had approved an AOC variance?

4. On the permit application form, did the applicant request a mountaintop removal AOC variance, a steep slope AOC variance, or a remining AOC variance? Between 1982 and 1991, the application form contained choices for only two AOC variances - steep slope and remining. In November 1991, the application form was amended to include the mountaintop removal AOC variance as a choice.

5. In the permit application, what type of mining did the applicant propose?

6. In the backfilling and grading plan in the permit application, what post-mining surface configuration was proposed by the applicant?

7. In the backfilling and grading plan in the permit application, what percentage of total swelled overburden was proposed to be placed in excess spoil fills?

8. In the permit application, what was the maximum overburden depth proposed for removal during the mining?

9. Finally, in the cross-section portion of the backfilling and grading plan, what was the maximum and average elevation change proposed?

Field observations answered the following questions:

1. Was there a significant change to the overall drainage pattern as a result of mining?

2. Using global positioning system equipment, what was the maximum and average elevation changes for the reclaimed sites?

OSM considered the following two criteria as establishing eligibility for the mountaintop removal AOC variance:

1. Is the entire coal seam proposed for removal (outcrop to outcrop) in the upper portion of a mountain?

2. Does the applicant propose a level plateau or gently rolling contour as a post-mining configuration?

OSM considered the following three criteria as establishing eligibility for the steep slope AOC variance:

1. Is the mining proposed in a steep slope area 20 or greater?

2. Does the mining leave a highwall to be reclaimed after coal removal indicating that the entire coal seam was not proposed for removal?

3. Does the applicant propose a post-mining configuration flatter than the pre-mining configuration?

Finally, information was collected on the number and size of excess spoil fills.

C. Review Standard

As in any State with primacy, the approved State program is the standard that was applied in determining operator compliance. The report discusses implementation of the State program as it is applied to the review sites.

5. Findings and Analysis

• Approximate Original Contour and Variances

1. Policy

OSM did not find any formal State policy guidance on the meaning of the term "approximate original contour" except for the State statutory definition, which essentially repeats the Federal definition. Nonetheless, DSMRE has been using the amount of original bank volume that the permittee proposed to place back in the mined area as an informal yardstick for determining when a proposed post-mining land configuration will be regarded as AOC and when it will be regarded as a variance from AOC. This informal policy, as DSMRE has explained it, is as follows:

DSMRE has required an AOC variance request for both mountaintop removal and steep slope operations if less than 80 percent of the original bank volume is placed back onto the mined area. In other words, if more than 20 percent of the original bank volume is placed into a fill, the operator is required to request a variance from AOC. DSMRE also requires a request for a variance from AOC if the operator proposes to leave a permanent road, bench, terrace, or feature that exceeds a width of 20 feet.

This informal policy was implemented early in the administration of the permanent program. This is supported by the frequency that OSM observed the number of permits with AOC variances occurring in the evaluation sample for this study. (Twenty-two out of 29 permits reviewed had a variance from AOC.) Furthermore, when reviewing all permits for surface mining in the mountains of Eastern Kentucky, OSM found 395 permits with variances from AOC. (See discussion above in Section 4 - Review Methodology.) The application of this informal policy has placed undue emphasis on one factor; the applicant's proposed placement of spoil material rather than land configuration and use, slope stability, and drainage controls, in determining compliance with AOC. If more than 20 percent of the spoil was proposed for disposal in a fill off the mined area, then the application was to be processed as a variance from AOC. Conversely, this informal policy did not properly emphasize the use of the required statutory standard for authorizing a variance from AOC based upon specific needs of the post-mining land use.

2. Permit Decisions and Site Observations

In order to facilitate a more comprehensive understanding of State policies and practices on AOC, the evaluation in this report gathered information beyond what might normally be reviewed by OSM on a State AOC decision. For example, rather than only checking to see if the State followed a reasonable public process in making its determination and checking to see if the on-the-ground reclamation conformed to the permit, OSM developed its own descriptions of the site. Cross-sections, photographs, fill measurements, etc. were included to facilitate an overall understanding of what was allowed as AOC within the State. Tables A-4, A-5, and A-6, as well as Chapter B of this report, provide descriptive information about all the sites evaluated.

For this study, OSM reviewed 29 permits. Seven of the 29 permit decisions required the permit area to be restored to AOC. The remaining 22 permits decisions authorized variances from AOC. Of the seven permits approved for reclamation to AOC, four mines initially proposed restoring AOC with a post-mining land configuration very similar to the pre-mining land-form. In the three remaining AOC permits, the applicants either applied for an AOC variance or one was implied by the sections of the permit application describing the backfilling and grading plans. However, the permit decision documentation listed on the issue sheet, did not authorize any variance from AOC--perhaps through administrative error because no other rationale was presented.

To evaluate how DSMRE is making AOC determinations or authorizing variances from AOC, OSM compared sites that were to return the land to AOC to sites that were granted variances from AOC. As a result of this comparison, OSM made the following observations:

• As illustrated by the data for each permit in Chapter B and in Table A-4, final grading plans for some sites (7) that were to be returned to AOC differed little from those for sites (22) with AOC variances indicating insufficient analysis of the backfilling and grading plans when reaching the AOC determinations. Furthermore, both sites with AOC variances and sites that were to be returned to AOC have been reclaimed to pre-mining configurations, gently rolling slopes, and inwardly draining plateaus. Specifically, OSM found the following:

Of the seven sites permitted to reclaim to AOC, a review of the cross-sections in the backfilling and grading plans indicates the following regarding land configuration:

- Three permits proposed to reclaim the sites to near pre-mining configurations and elevations, indicating an intent to reclaim the site to AOC.

- Three permits proposed to reclaim the sites to gently rolling slopes, but at lower elevations, characteristic of a variance site.

- One permit proposed to reclaim the site to an inwardly draining plateau, characteristic of a variance site.

Of the seven sites that were permitted to reclaim to AOC, three sites were reclaimed. A field review of these sites indicates the following regarding land configuration:

- Two sites had been reclaimed to gently rolling slopes, but at lower elevations, characteristic of a variance site.

- One site had been reclaimed to an inwardly draining plateau, characteristic of a variance site.

Of the 22 sites permitted with an AOC variance, a review of the cross-sections in the backfilling and grading plans indicates the following regarding land configuration:

- Two permits proposed to reclaim the sites to near pre-mining configurations and elevations, indicating an intent to reclaim the site to AOC.

- Nine permits proposed to reclaim the sites to gently rolling slopes, but at lower elevations, characteristic of a variance site.

- Eleven permits proposed to reclaim the sites to inwardly draining plateaus, characteristic of a variance site.

Of these 22 sites permitted with an AOC variance, seven sites had been reclaimed. A field review of these sites indicates the following regarding the reclaimed land configuration:

- One site had been reclaimed to near pre-mining configurations and elevations (AOC).

- Four sites had been reclaimed to gently rolling slopes, but at lower elevations, characteristic of a variance site.

- Two sites had been reclaimed to inwardly draining plateaus, characteristic of a variance site.

• Sites with AOC variances show greater gains or reductions in elevation across the minesites than did sites to be reclaimed to AOC. For sites with AOC variances, the maximum elevation changes ranged from a 157-foot increase to a 290-foot reduction, and the average elevation changes ranged from a 75-foot increase to a 180-foot reduction. For sites to be reclaimed to AOC, the maximum elevation

changes ranged from a 220-foot increase to a 140-foot reduction, and the average elevation changes ranged from a 44-foot increase to a 30-foot reduction.

• There were no significant changes in general drainage patterns for any sites. (See Table A-5.) In other words, there was no visible significant redirection of run-off from one drainage area or watershed to another.

Other observations OSM made concerning sites that were to return the land to AOC were:

• During the permitting process, no other agencies or members of the public objected to the State's determination that the sampled sites, if mined and reclaimed in accordance with their permits, would meet the AOC requirement.

B. Excess Spoil Fills

Excavated material swells during mining because of the creation of voids resulting from fracturing of the overburden. The degree to which material swells is referred to as the "swell factor." The swell factor is one of the elements considered during mining in estimating the number and size of fills needed to conduct an operation. Other factors include stability, drainage, and access. The permits reviewed contained information regarding swell factors and the amount of predicted excess spoil to be placed in fills. While there is no specific numerical requirement in the regulations relating to swell factor, the permit applications should contain strata-by-strata, volume-weighted information regarding spoil calculations and the amount of excess spoil to be placed in fills. This information may be a good indicator of the degree to which AOC may be achieved using available material. Table A-6 shows the information regarding swell factors and the amount of predicted excess spoil to be placed in fills.

Both sites with and sites without AOC variances require excess spoil disposal fills. On the larger sites, these fills may be several thousand feet in length. (See Table A-6.) Excess spoil fills hold the excess spoil not needed to achieve AOC or, for those sites with an AOC variance, the spoil not needed to achieve the approved post-mining land use. Excess spoil fills are outside the mined area to which the AOC requirement applies. Therefore, excess spoil fills themselves are not subject to a requirement to achieve AOC.

Sites with AOC variances had a somewhat larger incidence of excess spoil being placed in fills than did sites without AOC variances. As Table A-6 shows, the percentage of spoil being placed in fills ranged from 10.9 to 67.4 percent for sites with AOC variances and between 17.2 and 46.1 percent for sites without AOC variances. Both sites with and without AOC variances placed more material in the fill than could be accounted for by just the swell factor, which ranged from 20 to 30 percent, according to the permits.

OSM's review of the permit documents and field conditions on the fills approved and constructed for disposal of excess spoil identified two areas of concern. First, several approved fills were not constructed at all and several other fills were not constructed to capacity, suggesting that operators are seeking fill capacity in excess of that necessary for the operation. Secondly, because of construction problems, certain fills were larger in capacity than they should have been and consequently caused unnecessary impacts to headwaters and streams. This review was not meant to be a comprehensive review of the methods for determining whether fills sizes were necessary and appropriate. However, as mentioned above, comparison of the fills approved to fills actually constructed indicated that several of the fills that had been proposed were not actually constructed and that several other fills were not built to design capacity.

1. Excess Spoil Fills and Fill Capacity

OSM's review of excess spoil fills examined the 175 fills approved in the 29 permits that were the basis for this report. Two aspects of this group of fills were examined to determine industry practices. First, the number of fills and the approved and utilized fill capacity was analyzed for permits where mining was completed. (See Table A-9.) Secondly, the number of fills and the approved and utilized fill capacity was analyzed for the fills that had been completed and construction certified by the permittee. (See Table A-10.)

Of the 29 permits in this study, mining was completed on seven permits. Table A-9 contains the data on the fills from these seven permits. OSM found that a total of 33 fills had been approved in these seven permits. After mining was completed, a total of 21 fills were constructed. A total excess spoil fill capacity of 65.3 million cubic yards was approved in these 33 fills. After mining was completed, a total of 41.7 million cubic yards of fill capacity was utilized. In conclusion, on the permits reviewed where mining was completed, only 64 percent of the approved excess spoil fills were constructed and 64 percent of the approved fill capacity was utilized.

Upon completion of construction of an approved fill, the permittee must submit certification from a registered professional engineer that the construction of the fill is complete. Of the 175 fills approved on these 29 permits, 36 fills on 14 permits were certified as complete. Table A-10 contains the data on these 36 fills. The permits were approved with an excess spoil fill capacity of 252.6 million cubic yards in these 36 fills. The certifications demonstrated that 210.6 million cubic yards or 83.3 percent of the approved fill capacity was utilized.

2. Observed Construction Concerns

The fill construction practices were noted as a part of OSM's field visits. No concerns were noted on 24 permits. There were, however, construction concerns observed on 10 fills on five permits.

On seven fills, the construction was initiated by pushing excess spoil off the coal outcrop into the approved fill over the entire length of the approved fill from each side of the drainage. This practice is variously called "side-dumping" or "wing-dumping." Later changes in the method of mining resulted in less overburden being removed and, therefore, less excess spoil being generated and placed in the fills. The construction affected the entire surface area approved for the fill, but the final fill crest elevation was not as high as had been approved. The result of these practices is that a greater extent of the watersheds was affected than would have been necessary. The permanent loss of headwaters and streams would be reduced if the fill construction would be restricted to the upper portion of the watershed and then progress down the drainage only when necessary because of the amount of excess spoil generated.

On two fills, signs of instability were observed on the outslopes of the fills.

Finally, on one very large fill, called a "land-bridge," because it is used to move the dragline from one ridge to the next, construction of the fill was initiated at the lower end of the fill. Later, changes in the method of mining resulted in less overburden being removed and, therefore, less excess spoil being generated and placed in subsequent portions of the excess spoil fill. This course of action resulted in impounded water collecting in the upper portion of the fill. The site in question is currently the subject of outstanding State enforcement.

C. Post-Mining Land Uses

OSM found that most of the sampled permits were issued with post-mining land uses that are inappropriate under the approved program. OSM reviewed 13 permits that had been approved with either a mountaintop removal AOC variance alone or a mountaintop removal AOC variance in conjunction with a steep slope variance. Contrary to the requirements of the approved program pertaining to mountaintop removal variances, 12 of the 13 permits had been approved with a proposed post-mining land use of fish and wildlife habitat. OSM identified 9 permits that were issued with a steep slope AOC variance. Contrary to the requirements of the approved program pertaining to steep slope variances, all of these permits had been approved with proposed post-mining land uses of either fish and wildlife habitat or agricultural use (hayland/pastureland or grazing). Some permits had been issued with multiple post-mining land uses that included forest as a land use. Typically, the forest land use was only for the outslope areas. (See Table A-4.) All of the 22 permits that received a variance from the AOC standard have a designated post-mining land use that represents low intensity land-use management practices such as fish and wildlife, forestry, and hayland/pastureland.

During the summer of 1998, OSM first became aware of a State policy memorandum issued in May of 1991, that allowed fish and wildlife habitat as a post-mining land use for operations with either a mountaintop removal or steep slope AOC variance. In August of 1998, OSM requested that DSMRE explain its legal rationale for this policy. In September 1998, DSMRE responded that it did not have a legal rationale for that policy and would no longer issue permits for operations with either a mountaintop removal or steep slope variance with a fish and wildlife post-mining land use. Finally, on October 14, 1998, DSMRE Commissioner Carl Campbell issued a policy memorandum to the Division of Permits establishing that AOC variances would be approved only if justified by the specific post-mining land uses included in the approved State program. (See Appendix V.)

As indicated in Table A-4, thirteen permits had been issued with either a mountaintop removal AOC variance alone or both a mountaintop removal and a steep slope AOC variance. Of these, four permits were active and therefore implementation of the post-mining land use could not be observed. Five permits had been issued with combinations of post-mining land uses including fish and wildlife habitat, pasture land, and forest land and were being actively managed as public recreation/wildlife management areas by the Kentucky Department for Fish and Wildlife Resources. Three permits had been issued for fish and wildlife habitat and had been reclaimed to fish and wildlife habitat, but were not being managed by the Kentucky Department for Fish and Wildlife Resources. One site established a forest post-mining land use that was acceptable because the site had been restored to AOC.

As also indicated in Table A-4, nine of the 29 permits had been issued with only steep slope AOC variances. Of these, five permits were active and thus implementation of the post-mining land use could not be observed. Three permits had been issued with combinations of post-mining land uses, including fish and wildlife habitat, pasture land, and forest land and were being actively managed as public recreation/wildlife management areas by the Kentucky Department for Fish and Wildlife Resources. One permit had been issued for industrial/fish and wildlife habitat and had been reclaimed as fish and wildlife habitat not managed by a government agency.

Although this evaluation concentrated on post-mining land use and AOC, OSM generally observed that the sites were well vegetated after mining and that the reclaimed areas appeared stable.

In its review of those permit applications with mountaintop removal and steep slope AOC variances, OSM generally found most of the required documentation. (See Table A-7.) However, the permits routinely lacked appropriate assurances that the proposed post-mining land uses would be "obtainable according to data regarding expected need and market."

D. Mine Classification and Inventory

The Surface Mining Information System (SMIS) is an electronic database developed by DSMRE to track permitting and inspection and enforcement actions. SMIS is presently on a mainframe computer and was designed to provide on-line updates and menu-driven displays, and off-line updates and reporting capabilities. Ad hoc reporting capability is provided on the system but are infrequently used because of prohibitive costs. SMIS was not created, nor was it intended, to monitor compliance with regulatory requirements, but was developed as a means by which State administrators can monitor agency actions and assess program performance.

DSMRE is in the process of converting information in SMIS to a new Oracle-driven, client-server platform. Converting to this new platform will give DSMRE exclusive use of a dynamic, flexible reporting system. The initial stage of conversion was completed early in 1999.

SMIS, however, does not currently contain data fields on any variances, including AOC variances. There is a data field in SMIS for "Mine Type," with the following nine choices: contour, area, auger, mountaintop, preparation plant, haulroad, underground, refuse area, and steep slope. The information on "Mine Type" is entered into SMIS upon receipt of a permit application but is not consistently updated.

In addition, there are data fields for pre-mining and post-mining land uses, with the following sixteen choices: not available, other, fish and wildlife habitat, recreation, residential, commercial, heavy industrial, hay or pasture land, crop land, mined lands, grazing land, forest land, impoundment of water, and undeveloped land.

Because the "Mine Type" is not consistently updated and because SMIS does not currently track AOC variances, it was not possible to obtain a reliable electronic inventory of mountaintop mining permitted to be restored to AOC, mountaintop mining permitted with an AOC variance, and steep slope mining permitted with an AOC variance.

As the data in Table A-4 demonstrates, inconsistencies exist in 10 of the 29 permits, between the AOC variances requested by the applicants, the information actually supplied by the applicant, and the AOC variances that DSMRE ultimately granted. Seven of the ten permits proposed to mine an entire coal seam (outcrop to outcrop) and to reconfigure the surface to a plateau or a flat, gently rolling terrain, but had been granted a steep slope variance instead of the appropriate mountaintop removal variance. Part of this problem in categorizing variances could stem from the permit application form used prior to 1991 (discussed above). Even if that were the case, however, these permits should have been updated at mid-term reviews or renewals to reflect the appropriate variance. Two of the ten permits proposed to mine an entire coal seam and proposed to reconfigure the surface to a plateau or a flat, gently rolling terrain, but no AOC variance had been granted on the permit issue or "face" sheet. The remaining permit did not propose to mine an entire coal seam, proposed to leave a highwall to be reclaimed, and to reconfigure the surface to a flat, gently rolling terrain. The application contained requests for both mountaintop removal and steep slope AOC variances, but no variance was granted on the "face" sheet for this permit.

E. Need for State Program Amendments

The language in the approved State program regarding mountaintop removal mining operations with AOC variances is substantially identical to the Federal regulations.

The language in the approved State program regarding steep slope mining operations with AOC variance is substantially identical to the Federal regulations, except in two respects. First, Section 3(3)b of 405 KAR 20:060 does not contain all of the requirements of its Federal counterpart at 30 C.F.R. 785.16(a)(3)(ii), specifically the requirements pertaining to any existing or planned use of surface or ground water. Second, the State rule fails to include a provision comparable to 30 C.F.R. 785.16(a)(3)(iii), which requires the appropriate State environmental agency to approve the steep slope variance plan.

In acting on this program amendment, OSM, on December 31, 1990, disapproved 405 KAR 20:060 Section 3(3)(b) (55 Federal Register, pages 53490 through 53510). The disapproval required Kentucky to amend its program to clarify that, in approving a steep slope AOC variance, the total volume of the flow from the proposed mine area, during every season of the year, must not vary in any way that adversely affects the ecology of any surface water or any existing or planned use of surface or groundwater. Furthermore, the steep slope variance plan must be approved by the appropriate State environmental agency.

On March 31, 1990, then Commissioner William J. Grable agreed that the changes to this regulation were warranted, and that the State planned to submit an appropriate program amendment. To date, however, the State has failed to submit the promised program amendment. Nevertheless, DSMRE has been requiring the necessary information in the permit application. Consequently, the State's failure to submit the promised program amendment has not contributed to any of the concerns identified in this report.

F. Permit Findings

405 KAR 8:050, Section (4)(3), details the criteria for approval of a mountaintop removal AOC variance and states that the cabinet may issue a permit for mountaintop removal mining, without regard to the requirement of 405 KAR 16:190 to restore the lands disturbed by such mining to their approximate original contour, if it first finds in writing, on the basis of a complete application, that the detailed requirements of 405 KAR 8:050 Section (4)(3)(a) through (h) are met. (Emphasis added.) These requirements are detailed previously in Chapter 3 of this report.

405 KAR 8:050, Section (6)(1), details the criteria for approval of a steep slope AOC variance and states that the permit may contain a steep slope variance only if the Cabinet finds in writing, that the applicant has demonstrated, on the basis of a complete application, that the requirements of 405 KAR 20:060 are met. (Emphasis added.) These requirements are also detailed previously in Chapter 3 of this report.

DSMRE relies on a checklist form for its required findings. This document is entitled "Affirmative Findings - Issuance/Denial Checklist" and is included at Appendix VI. The Affirmative Findings document is divided into the following four sections: I. Applicant Eligibility Criteria, II. Technical Review Findings, III. Final Administrative Findings, and IV. Final Determination.

DSMRE relies upon the following three findings to satisfy the requirement of 405 KAR 8:050 for affirmative findings before approving mining with a mountaintop removal AOC variance. It also relies upon these three findings to satisfy the requirements of 405 KAR 8:050, Section 6, for affirmative findings before approving mining with a steep slope AOC variances.

These findings are:

1. II. 16, which reads as follows: "Based upon data and information provided in the permit application, this Agency has determined that the proposed post-mining land use of the proposed permit area meets the requirements of 405 KAR 16:210, or 405 KAR 18:220."

2. II 17., which reads as follows: "The Agency has made all specific approvals required under Title 405, Chapter 16 through 20."

3. IV., which reads as follows: "Based upon the analysis of the data and information provided by the applicant, the Agency has determined that the permit application is complete and accurate, and that it complies with all requirements of KRS Chapter 350 and Title 405, Chapter 7 through 24."

Reliance on these general findings does not demonstrate the specific considerations required for the State to approve mining with either a mountaintop removal or a steep slope AOC variance or if, in fact, a variance is approved.

TABLE A-8
Steep Slope AOC Variance Criteria for Permits Selected for Review
Permit	The permit area is located on slopes that exceed an average of 20 degrees.	All highwalls are completely backfilled.	Only spoil not necessary to achieve the post-mining land use may be removed from the mine bench.	The permitted and adjacent areas will be improved by reducing pollutants to ground and surface waters and floor hazards.	Appropriate Federal, State, and local governmental agencies were provided an opportunity to comment on the proposed post-mining land use and deemed it to be an equal or better economic of public use.	The plan is designed and certified by a registered professional engineer to assure stability, drainage, and configuration necessary for the intended use of the site.	The landowner requested in writing that a variance be granted to achieve the approved alternative post-mining land use.
880-0108	Yes	Yes	Yes	Yes	Yes	Yes	Yes
460-0080	Yes	Yes	Yes	Yes	Yes	Yes	Yes
860-0047	Yes	Yes	Yes	Yes	Yes	Yes	Yes
413-0075	Yes	Yes	Yes	Yes	Yes	Yes	Yes
860-0234	Yes	Yes	Yes	Yes	Yes	Yes	Yes
897-0377	Yes	Yes	Yes	Yes	Yes	Yes	Yes
813-0205	Yes	Yes	Yes	Yes	Yes	Yes	Yes
898-0533	Yes	Yes	Yes	Yes	Yes	Yes	Yes
898-0303	Yes	Yes	Yes	Yes	Yes	Yes	Yes
866-0226	Yes	Yes	Yes	Yes	Yes	Yes	Yes
898-0324	Yes	Yes	Yes	Yes	Yes	Yes	Yes
880-0103	Yes	Yes	Yes	Yes	Yes	Yes	Yes
897-0330	Yes	Yes	Yes	Yes	Yes	Yes	Yes
898-0365	Yes	Yes	Yes	Yes	Yes	Yes	Yes
Steep Slope AOC Variance Criteria for Permits Selected for Review<
898-0338	Yes	Yes	Yes	Yes	Yes	Yes	Yes
813-0223	Yes	Yes	Yes	Yes	Yes	Yes	Yes
897-0369	Yes	Yes	Yes	Yes	Yes	Yes	Yes
836-0212	Yes	Yes	Yes	Yes	Yes	Yes	Yes

TABLE A-9
Fill Data for Sites Where Mining Was Completed
Permits (Mining Complete)	# Fills Proposed	# Fills Placed	% Fills Constructed	Cubic Yards Proposed (mil)	Cubic Yards Placed (mil)	% Volume in Place
880-0100	2	2	100	14.7	14.7	100
898-0324	8	7	88	14.5	12	83
898-0338	5	2	40	17.3	1.9	11
918-0346	1	1	100	1.4	0.3	21
813-0154	11	6	55	11.1	6.9	63
836-0212	3	1	33	2.2	2.1	95
898-0471	3	2	67	4.1	3.8	93
Totals	33	21	64	65.3	41.7	64

A-10
Fill Data for Completed and Certified Fills
Permits with Completed Fills	Number of Fills Certified	Cubic Yards Proposed (mil)	Cubic Yards Placed (mil)	% Volume in Place
880-0011	3	3.1	2.9	95.0
880-0100	2	14.7	14.0	95.0
860-0003	2	15.6	15.6	100.0
860-0157	1	2.2	2.2	100.0
898-0533	2	1.6	1.6	100.0
898-0303	5	22.5	19.0	84.2
898-0324	2	3.2	2.9	90.0
880-0103	7	17.1	17.1	100.0
898-0365	1	0.3	0.2	75.0
407-0128	2	6.1	3.4	55.0
898-0338	2	14.5	1.9	12.9
918-0346	1	1.4	0.3	25.0
813-0154	4	4.5	4.0	88.4
898-0471	2	3.8	3.6	95.0
Totals	36	252.6	210.6	83.3