- 21 -
pressure between the wall and pit than would a hole filled only
with air. Both these factors make the pit wall more stable. It
also keeps the soil of the pit’s edges moist and therefore even
more cohesive. Although some portions of the pit walls may well
crumble over time, that crumbling is why the setbacks are needed.
We also take judicial notice that the Houston area more closely
resembles a swamp than a desert--there is plenty of water in the
area to fill in the property when mining is done. We therefore
find in favor of Terrene on this point, and agree with its
experts that the pit walls can be left at a 75-degree slope.
Ebanks credibly testified that at this angle, approximately 3% of
the volume would be lost, so we will subtract another 94,643
tons.10
iv. Waste
The final reduction we must consider is the waste that
inevitably occurs during extraction and processing. Terrene
makes no adjustment; the Commissioner wants us to use 10%.
Neither side introduced any especially compelling evidence on
this point, but we found Moritz credible in saying that some
waste is inevitable in any mining operation and that 10% is the
industry’s rule of thumb. So by a bare preponderance of the
evidence, we side with the Commissioner. Using the
10 The math thus far: 3,899,696 - 248,310 - 496,620 =
3,154,766. 3,154,766 (tons remaining after setbacks and work
area accounted for) x 97% = 3,060,123.
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Last modified: November 10, 2007