Surface Coal Mining and Reclamation Operations; Permanent Regulatory Program; Performance Standards; Permanent and Temporary Impoundments; Final Rule DEPARTMENT OF THE INTERIOR

Federal RegisterOct 20, 1994

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SUMMARY: The Office of Surface Mining Reclamation and Enforcement (OSM)

of the United States Department of the Interior (DOI) is amending

certain portions of its permanent program regulations governing

permanent and temporary impoundments at surface and underground mining

operations. The revisions are in response to a court action, and for

clarification. OSM is also addressing issues raised in a petition to

initiate rulemaking that would define the statutory distinction between

temporary and permanent impoundments.

EFFECTIVE DATE: This regulation is effective November 21, 1994. The

incorporation by reference of certain publications listed in the

regulations is approved by the Director of the Federal Register as of

November 21, 1994.

FOR FURTHER INFORMATION CONTACT:

Donald E. Stump Jr., P.E., Office of Surface Mining Reclamation and

Enforcement, U.S. Department of the Interior, Ten Parkway Center,

Pittsburgh, PA 15220; Telephone: 412-937-2164.

SUPPLEMENTARY INFORMATION:

I. Background

II. Discussion of Final Rule and Comments

III. Procedural Matters

I. Background

The Surface Mining Control and Reclamation Act of 1977 (the Act, or

SMCRA), 30 U.S.C. 1201 et seq., sets forth general regulatory

requirements governing surface coal mining and the surface impacts of

underground coal mining. Environmental protection performance standards

for permanent water impoundments constructed during surface mining

activities appear in section 515(b)(8) of the Act, 30 U.S.C.

1265(b)(8); provisions governing the construction of siltation

structures, a type of impoundment, appear in section 515(b)(10)(B), 30

U.S.C. 1265(b)(10(B). Section 516(b)(10) of the Act, 30 U.S.C.

1266(b)(10), imposes similar requirements for water impoundments that

are used for underground mining activities, but provides that the

Secretary shall make such modifications in the requirements as are

necessary to accommodate the distinct differences between surface and

underground mining.

OSM's regulations governing the design, construction and inspection

of impoundments call upon criteria established by the Soil Conservation

Service (SCS) and the Mining Safety and Health Administration (MSHA).

SMCRA at section 515(b)(8)(B) specifically references SCS's Public Law

83-566 as a performance requirement that must be met in the design and

construction of permanent impoundments. Existing OSM regulations

governing impoundment stability and margin of safety include MSHA

regulations by reference.

OSM has defined ``impoundment'' at 30 CFR 701.5 to be any holding

structure containing water, sediment, slurry, or other liquid or semi-

liquid. OSM rules regulate both temporary and permanent impoundments.

Sediment ponds and siltation structures are by current OSM definition

specific types of impoundments.

The permanent regulatory program for surface coal mining and

reclamation operations was promulgated on March 13, 1979 (44 FR 15312).

Requirements for sedimentation ponds and siltation structures at

surface mining activities were established at 30 CFR 816.46 (44 FR

15400), while those for underground mining at 30 CFR 817.46 (44 FR

15426) to implement the provisions of section 515(b)(10)(B) of the Act.

Requirements for permanent and temporary impoundments at surface mining

activities and underground mining activities were established in the

1979 rules at 30 CFR 816.49 (44 FR 15401) and 30 CFR 817.49 (44 FR

15428), respectively to implement provisions of section 515(b)(8) of

the Act. Permitting requirements for reclamation and operation plans

for impoundments at surface mining activities and underground mining

activities were established in the 1979 rules at 30 CFR 780.25 (44 FR

15360) and 30 CFR 784.25 (44 FR 15368), respectively.

During revisions to the permanent regulatory program in 1983, OSM

replaced most of the specific design criteria in 30 CFR 816.46 (48 FR

44051) and 816.49 (48 FR 44004) with performance standards.

Furthermore, Sec. 816.46 was renamed, ``Hydrologic balance: Siltation

Structures,'' to be consistent with the wording of section

515(b)(1)(B)(ii) of the Act and to reflect rule changes which provided

for the use of certain siltation structures other than sedimentation

ponds, such as chemical treatment facilities or mechanical structures

that have a point-source discharge.

Upon issuance, the 1983 rules for 30 CFR 816.46 and 816.49 were

challenged in the U.S. District Court for the District of Columbia in

In Re: Permanent Surface Mining Regulation Litigation (II), No. 79-1144

(D.D.C. July 15, 1985) (In Re: Permanent (II)). The court remanded:

(1) Sections 816.49 (a)(3) and (a)(5)(i) on the basis that they

included requirements for a static safety factor and for foundation

investigation and laboratory testing of small sedimentation ponds

without having included such requirements when the rule was proposed on

June 21, 1982, as required by the Administrative procedure Act; and

(2) Section 816.49 to the extent it relied only on MSHA impoundment

size classification standards when OSM had not justified reliance

solely on such standards. Slip op. at 30-32 and 102-117. Additionally,

in response to plaintiff's challenge of the combination spillway

requirement of Sec. 816.49(a)(8), the Secretary of the Interior agreed

to reexamine the issue and consider proposing a rule specifying that

one spillway that can safely pass the design precipitation event may

serve as a combination principal and emergency spillway. (Id. at 1538

and 1571-1572.)

On October 27, 1988 (53 FR 43584), OSM amended the permanent

program regulations governing permanent and temporary impoundments at

surface and underground mining operations. The 1988 rules incorporated

design and performance requirements for impoundments and spillways that

were based on MSHA criteria and SCS classification for Class B and C

structures.\1\ The 1988 rules also authorized the approval of sediment

ponds that rely primarily on storage to control the runoff from the

design precipitation event, as opposed to relying on both principal and

emergency spillways.

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\1\Earth Dams and Reservoirs, Technical Release No. 60, Revised

October 1985, as amended in October 1990 and distributed via

Amendment 1, January 30, 1991, U.S. Department of Agriculture, Soil

Conservation Service Engineering Division defines three classes of

dams, Class (a).--Dams located in rural or agricultural areas where

failure may damage farm buildings, agricultural land, or township

and country roads. Class (b).--Dams located in predominantly rural

or agricultural areas where failure may damage isolated homes, main

highways or minor railroads or cause interruption of use or service

of relatively important public utilities. Class (c).--Dams located

where failure may cause loss of life, serious damage to homes,

industrial and commercial buildings, important public utilities,

main highways, or railroads.

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30 CFR 816.49 of the 1988 rules on impoundments was challenged by

environmental groups who incorrectly interpreted that the 1988 rules

were based only on MSHA criteria. In its decision in NWF v. Lujan, No.

88-3345 (D.D.C. August 30, 1990), the court noted the issue involved

the interplay of three laws and three Federal agencies charged with

writing regulations to carry out those laws. Each of the laws governs

water impoundments, but with different goals in mind. In addition to

SMCRA, the laws are: (1) the Watershed Protection and Flood Prevention

Act, Pub. L. 83-566, and rules issued under it by the SCS, including

technical standards for the design and construction of impoundments

found in Technical Release Number 60 (TR-60) ``Earth Dams and

Reservoirs,'' and Practice Standard 378 ``Ponds''; and (2) the Federal

Mine Safety and Health Act and rules issued under it by the MSHA.

Section 515(b)(8)(B) of SMCRA has a mandate to ensure that impoundments

meet the stability requirements of the Watershed Protection and Flood

Prevention Act.

The court found that the SCS standards referred to in the preamble

to 30 CFR 816.49(a)(3)(i) are, as the Secretary noted, the SCS Class B

and C dams. Furthermore, the court stated ``[i]ndeed, in the

Secretary's view, he has provided greater protection in this rule than

does SCS because he mandated the stricter design standard when an

impoundment meets either SCS's qualitative standard for Class B and C

dams or the MSHA's size standard, which covers more impoundments than

does the SCS's looser size standard.'' NWF v. Lujan, supra, slip. op.

at p. 65.

The court did note that a plain reading of the preamble may result

in some ambiguity. To clarify this issue for all water impoundments

design, construction, and performance, OSM proposed regulations to

reference specifically both SCS Class B and C impoundments and MSHA

impoundments in all rules at 30 CFR 780.25 and 816.49 where

impoundment-related criteria are found.

On June 28, 1991 (56 FR 29774), OSM proposed to amend its permanent

program regulations governing permanent and temporary impoundments at

surface and underground mining operations. In addition to soliciting

public comments and providing an opportunity for public hearings upon

request, OSM provided a 146-day comment period. The comment period was

extended beyond its original 60-days in response to a request for an

extension and to coordinate this rulemaking with OSM's evaluation and

decision on a petition to initiate rulemaking.

OSM received a letter on September 12, 1991, from the Joint

National Coal Association and the American Mining Congress (NCA/AMC)

Committee on Surface Mining Regulations, as a petition for rulemaking.

The petitioners requested that OSM propose rulemaking which

incorporates a ``statutory'' distinction between temporary and

permanent impoundments as it pertains to the incorporation of standards

issued under Public Law 83-566 including TR-60. The petition to

initiate rulemaking was published on October 21, 1991 (56 FR 52494).

OSM received 11 comments on the proposed rulemaking and 3 comments

on the petition from 11 organizations, including State regulatory

authorities, environmental groups, representatives of the coal

industry, and professional organizations. No public meeting was

requested and none was held.

II. Discussion of Final Rule and Comments

After consideration of the Administrative Record of these

regulations; as well as the legislative history of the Act; the August

30, 1990 decision in the United States District Court for the District

of Columbia; other opinions of the court; and in light of current

technical information on impoundment design, construction, and

inspection, OSM is making the following revisions to its permanent

regulatory program. Consistent with its findings when it promulgated

the 1979, 1983, and 1988 rules, OSM has not identified any differences

between impoundments for surface and underground mines that would

appear to necessitate different regulatory provisions under this final

rulemaking. Therefore, the permitting rule applicable to impoundments

for surface mining activities at 30 CFR 780.25 and the rule for

underground mining activities at 30 CFR 784.16 are identical Similarly,

the performance rules for surface mining activities at 30 CFR 816.46

and 816.49 are identical to the final rules for underground mining

activities at 30 CFR 817.46 and 817.49, respectively.

On March 6, 1992 (57 FR 8102), OSM published a notice of decision

denying the petition for rulemaking. In OSM's decision, the Director

stated that the issues raised in the petitioners' letter would be

discussed concurrently with the comments to the proposed rule published

on June 28, 1991 (56 FR 29774). This preamble contains that discussion.

General Comments

In addition to comments received on specific provisions of the June

28, 1991, proposed rule, OSM received several general comments. One

commenter supported the proposed rule because the SCS publications TR-

60 and Practice Standard 378 are widely used in the design profession

and the adoption of these by reference will lead to better construction

and performance of impoundments. Two commenters supported the proposed

rule because it required more stringent standards for plans, designs,

and construction for impoundments meeting the SCS Class B and C hazard

criteria; and made the regulations consistent with section 515(b)(8) of

the Act. OSM appreciates these comments, which in part, constitute the

support for this rule.

Three commenters were concerned that most of the sedimentation

ponds in the West would have to be reconstructed. They noted that

according to TR-60 (Table 2-5, footnote 2) Class A (low hazard) dams

containing industrial water are to be designed to the more stringent

criteria required for Class B dams. The commenters feared that all

Class A ponds used in surface coal mining operations would have to be

reconstructed to meet Class B design and performance criteria. OSM

wishes to alleviate the commenters' concerns. OSM intends the dam

classifications to be based solely on the hazard potential of the

structure and its location which is independent of the purpose for

which impoundment was constructed. Therefore, there need not be any

wholesale reconstruction of Class A ponds used in surface coal mining

operations to meet Class B design and performance criteria simply

because the pond is used to contain industrial water.

Two commenters requested that OSM incorporate a distinction between

temporary and permanent impoundments because they believed it is

contrary to SMCRA section 515(b)(8) which refers specifically to

permanent impoundments. Also, during the comment period for the

proposed rule, the NCA/AMC petitioned OSM to amend its rules to

incorporate a ``statutory'' distinction between temporary and permanent

impoundments when applying SCS criteria and regulations. Three

commenters supported the petition and reinforced the petitioners'

position that OSM should recognize the significant differences between

temporary and permanent impoundments.

OSM has defined the terms ``permanent impoundment'' and ``temporary

impoundment'' in prior rulemakings and both definitions appear in 30

CFR 701.5. These definitions recognize the difference between temporary

and permanent impoundments in terms of whether or not the impoundment

is designed to remain as a postmining land use feature. For instance,

under OSM's definition, impoundments that may be used for at least

several years (probably more) during mining, reclamation, and which

could be retained until shortly before bond release, would be

classified as ``temporary.'' From an engineering perspective, the term

``temporary'' is also used to represent an impoundment constructed to

last for the relatively short time period while ``permanent''

structures are being built.

Regardless of these distinctions, OSM has determined that the key

criteria to use in determining the construction standards to be

followed by operators constructing impoundments is the structure's

hazard potential--regardless of whether it is to be used as a temporary

or permanent impoundment. Therefore requiring ``temporary

impoundments'' [in OSM's sense of the word, i.e., to be removed

following completion or surface mining activities] to meet SCS hazard

criteria is appropriate because typically these impoundments will be

used for the life of the mining operation and are not constructed as a

precursor to a permanent structure. Thus, while certain impoundments

may be built to different standards, the key distinction is not whether

the impoundments are temporary or permanent, but rather whether or not

the impoundments meet the SCS B or C hazard classification or the MSHA

size criteria.

Application of these performance standards to temporary

impoundments is not new policy. OSM is continuing to follow the policy

discussed in the preamble for the October 27, 1988, rules (53 FR

43589). In that preamble, OSM concluded that in view of the broad

mandate of section 102(a) of the Act, ``to protect society and the

environment,'' OSM has adopted a rule that is based on the hazard

classifications established by the SCS, yet incorporates the more

stringent MSHA criteria when their size criteria applies. Section 515

of SMCRA establishes minimum general performance standards for surface

coal mining and reclamation operations. In this instance, the Secretary

has concluded that the standards imposed by this rule are warranted

because of the hazard potential in the event of failure. Application of

this rule to temporary impoundments in supported by section

515(b)(8)(B) which may be construed to cover impoundments that will be

retained for a period of years over the life of the mine, as well as

the broad rulemaking authority of sections 201(b)(2) and 501.

One commenter requested that if OSM finalizes these rules without

distinctions between temporary and permanent impoundments, then

existing temporary structures presently meeting performance standards

should be grandfathered and not be required to be reconstructed. OSM

does not agree. All impoundments must be evaluated by operators and

regulatory authorities and reconstructed where necessary as determined

by the impoundment's current hazard classification. Impoundments

currently constructed to meet the standards for SCS Class B or C hazard

criteria or the MSHA size criteria need not be reconstructed.

Similarly, impoundments not meeting such criteria need not be

reconstructed. Those which upon evaluation are determined to meet the

size or SCS Class B or C classifications but do not currently meet the

standards will need to be reconstructed. However, since the rules

finalized today clarify the 1988 rules which applied SCS dam

classifications to impoundments, changes should not be required to the

extent changes have been implemented in State or Federal programs.

One commenter was concerned about the design, construction,

certification, and performance requirements for SCS Class A permanent

impoundments since the rule changes deal strictly with SCS Class B and

C impoundments. The commenter noted that many permanent impoundments

meeting the Class A criteria are constructed in accordance with

appropriate specifications and wanted to know what the requirements

would now be for these Class A impoundments. The commenter is correct:

The regulations for Class A impoundments are not being changed by this

rulemaking.

Section 701.5 Definitions: Siltation Structure

As proposed, the definition of siltation structure has been moved

to 30 CFR 701.5 from 30 CFR 816.46(a)(1). The definition appearing in

30 CFR 817.46 (a)(1) is being removed. This is an organizational change

only. Section 701.5 already includes definitions of related terms such

as impounding structure, impoundments, and sedimentation pond. Moving

the definition of siltation structure from section 816.46(a)(1) to

701.5 centralizes the location of these related definitions.

Section 701.5 Definitions: Other Treatment Facilities

Also as proposed, the definition of other treatment facilities, a

term related to siltation structures, has been moved to 30 CFR 701.5.

This definition of other treatment facilities is similar to the

definitions previously appearing in 30 CFR 816/817.46(a)(3) which are

being removed. The new definition adds the words ``neutralization'' and

``precipitators'', to indicate common water quality treatment

processes, and the phrase, ``to comply with all applicable State and

Federal water-quality laws and regulations.'' These additions to the

definition clarify that the purpose of an other treatment facility is

to comply with water quality laws, as well as to prevent additional

contributions of dissolved or suspended solids to streamflow or off-

site runoff. Revising the definition does not change the thrust of the

performance standards in 30 CFR 816/817.41-49. Moving the definition of

other treatment facilities from Sec. 816.46(a)(3) to 701.5 centralizes

OSM's definitions and logically follows the relocation of the

definition of siltation structure.

Two commenters were concerned that revisions to the definition of

``other treatment facilities'' will allow approval of facilities that

can not meet effluent limits for sediment. Moving the definition of

other treatment facilities to section 701.5 does not affect or alter

the requirement to meet the effluent limits which appears in 30 CFR

816.42.

Sections 780.25/784.16 Permitting Requirements for Reclamation Plans:

Siltation Structures, Impoundments, Banks, Dams, and Embankments

Section 30 CFR 780.25 establishes permitting requirements

applicable to the design of each siltation structure, water

impoundment, and coal processing waste bank, dam, or embankment within

the proposed permit area. Section 780.25 is being revised to add

specific references to the SCS criteria for dam classification found in

their Technical Release No. 60 (TR-60) and to include editorial changes

as described below. These changes, which are being issued as proposed,

were needed to ensure that the permitting requirements for impoundments

are consistent with the performance standards for impoundments and that

both are tied to SCS and MSHA requirements.

For editorial purposes, OSM revised the heading of 30 CFR 780.25

and the text of Sec. 780.25(a) by removing the word ``Ponds'' and

replacing it with ``Siltation structures.'' This revision makes the

section title consistent with the broader classification of structures

intended to be covered by Sec. 780.25 and with similar changes at

section 816.46 that will be discussed later.

In final 30 CFR 780.25(a)(2), OSM references the SCS dam

classification in TR-60 as proposed. This additional language clarifies

that the SCS classification criteria as well as the MSHA criteria are

components of OSM rules. This approach clarifies that impoundments that

do not meet the MSHA criteria in 30 CFR 77.216(a), but are determined

to be Class B or C impoundments by SCS criteria in TR-60, must comply

with the more rigorous standards that apply to impoundments that meet

those classifications.

OSM revised 30 CFR 780.25(a)(3) by removing the reference to 30 CFR

77.216(a) and by replacing it with a reference to Sec. 780.25(a)(2),

where the SCS and MSHA impoundment classification criteria are both now

located since both apply.

In 30 CFR 780.25(b), OSM replaced the phrase ``sedimentation

ponds'' with ``siltation structures'' to be consistent with the revised

title for the section. OSM also removed the last two sentences of

Sec. 780.25(b) because the same requirements already exist in 30 CFR

780.25(c)(1) and (2). In all cases the final rules are the same as

those proposed.

OSM revised 30 CFR 780.25(c)(3) as proposed by removing the

reference to ``Sec. 77.216(a) of this title'' and the phrase ``located

where failure would not be expected to cause loss of life or serious

property damage,'' and by replacing it with a reference to

Sec. 780.25(a)(2), where equivalent MSHA standards and the added SCS

impoundment classification criteria are now located. This is consistent

with changes described above.

In 30 CFR 780.25(f), OSM is replacing, as proposed, the phrase,

``is 20 feet or higher or impounds more than 20 acre-feet,'' with the

phrase, ``meets the SCS Class B or C criteria for dams in TR-60 or

meets the MSHA size or other criteria of section 77.216(a) of this

chapter.'' This revision has the same effect as the existing

regulations and makes Sec. 780.25(f) consistent with the regulation

changes referencing structure classification previously discussed.

Sections 816.46/817.46 Hydrologic Balance: Siltation Structures

30 CFR 816.46 of OSM's permanent program regulations establishes

performance standards applicable to siltation structures. The proposed

revisions to move the definitions of siltation structures and other

treatment facilities at Sec. 816.46(a)(1) and (a)(3) to Sec. 701.5 are

being implemented as proposed. This relocation of the definitions is an

organizational change, the reason for which has been previously

discussed.

Also as proposed, in 30 CFR 816.46(c)(2), OSM removed the spillway

design requirements at Sec. 816.46(c)(2)(i) through (iii) and replaced

them with a reference to the requirements in newly designated

Sec. 816.49(a)(9). The spillway design requirements in

Sec. 816.49(a)(9) are the same as those in existing

Sec. 816.46(c)(2)(i) through (iii). Therefore, for clarity and

conciseness, OSM revised Sec. 816.46(c)(2) to reference

Sec. 816.49(a)(9) and removed Sec. 816.46(c)(2)(i) through (iii)

instead of duplicating the same design requirements in two places in

the rules.

One commenter was concerned that revisions to Sec. 816.46(c) would

remove the authority to use storage based sedimentation ponds instead

of ponds with spillways. OSM continues to allow the use of storage

based sediment ponds. The authority to use these structures is found in

Sec. 816.49(a)(9) which refers to Sec. 816.49(c)(2).

Section 816.49/817.49 Impoundments

30 CFR 816.49 of OSM's permanent program regulations establishes

performance standards for impoundments. The revisions incorporate by

reference the criteria in TR-60 and require impoundments meeting SCS

Class B or C criteria in TR-60 to meet the same stability, spillway,

foundation investigation, freeboard hydrograph, inspection, and

examination requirements as impoundments meeting MSHA criteria in 30

CFR 77.216(a). The specific sections revised in 30 CFR 816.49 are

summarized below. The rationale for these revisions as previously

discussed is based on the August 30, 1990, decision in NWF v. Lujan and

would achieve the necessary clarification.

As proposed, OSM is adding a new section, 30 CFR 816.49(a)(1),

which incorporates by reference the SCS guidance document TR-60 as it

relates to minimum emergency spillway hydrologic criteria. This

addition requires the redesignation of the existing sections in

Sec. 816.49(a). Former sections (a)(1) through (a)(12) are therefore,

redesignated as paragraphs (a)(2) through (a)(13) respectively. A minor

change from the proposal is the change in OSM's address for its

Administrative Record which is now located at 800 North Capitol Street

instead of the former location at 1100 L Street.

One commenter objected to the cross-reference to TR-60 because it

could lead to the implication that the document including standards are

being incorporated. The commenter suggested OSM should repeat the

pertinent classification criteria in the rules. OSM does not intend to

imply or to require that all the standards in TR-60 will have to be

met, except those for minimum emergency spillway hydrologic criteria.

OSM is not repeating these criteria in the regulations because they are

established by SCS through TR-60 and referencing that document will

insure compatibility with the appropriate criteria.

As proposed, existing 30 CFR 816.49(a)(3) is redesignated as

Sec. 816.49(a)(4). Section 816.49(a)(4)(i) is added so that

impoundments meeting the SCS Class B or C criteria for dams in TR-60

would be subject to the stability and margin of safety requirements of

this section. OSM also removed the phrase, ``located where failure

would be expected to cause loss of life or serious property damage''

because it is now redundant with the cited SCS reference.

In redesignated 30 CFR 816.49(a)(4)(ii), OSM removed the reference

to 30 CFR 77.216(a) and replaced it with a reference to

Sec. 816.49(a)(4)(i). This clarifies which safety factors are related

to specific types of impoundment classification. This is being issued

as proposed.

Existing 30 CFR 816.49(a)(4) is redesignated as Sec. 816.49(a)(5).

OSM revised redesignated Sec. 816.49(a)(5) by specifying that

impoundments meeting the SCS Class B or C criteria for dams in TR-60

shall comply with the freeboard hydrograph criteria in the ``Minimum

Emergency Spillway Hydrologic Criteria'' table in TR-60, in order to be

compatible with SCS requirements.

Existing 30 CFR 816.49(a)(5) is redesignated as 816.49(a)(6). In

redesignated Sec. 816.49(a)(6)(i), OSM is conforming the scope of this

provision to the other paragraphs in this section by adding the phrase,

``Class B or C for dams in TR-60, or'' to the final sentence. The final

version is identical to the proposal.

Existing 30 CFR 816.49(a)(8) redesignated as 816.49(a)(9). OSM

revised as proposed redesignated Sec. 816.49(a)(9)(ii) by redesignating

Secs. 816.49 (a)(9)(ii) (A) and (B) to be Secs. 816.49 (a)(9)(ii) (B)

and (C), respectively, and adding as proposed the spillway requirements

for impoundments meeting the SCS Class B or C criteria for dams in TR-

60 as new Sec. 816.49 (a)(9)(ii)(A). Two commenters believe the

spillway hydrograph requirements are not consistent with TR-60.

Specifically, they felt the ``freeboard hydrograph'' from Table 2-5

should be used instead of the ``emergency spillway hydrograph'' in

Sec. 816.49(a)(9)(ii)(A). The commenters asserted that the emergency

spillway hydrograph is not to be used to determine capacity of the

spillway, but is used to proportion the spillway to ensure safe water

velocities. The commenters also asserted that it is the freeboard

hydrograph that is to be used to set the spillway capacities.

OSM disagrees with the commenters. OSM intends the freeboard

hydrograph and the emergency spillway hydrograph to be used as they are

defined by SCS. The ``emergency spillway hydrograph'' is the hydrograph

used to establish the dimensions of the emergency spillway. The

``freeboard hydrograph'' is the hydrograph used to establish the

minimum settled elevation of the top of the dam. It is also used to

evaluate the structural integrity of the spillway system. OSM disagrees

with the suggested change to Sec. 816.49(a)(9)(ii)(A) and believes it

has already appropriately referenced the ``freeboard hydrograph'' in

the citation at Sec. 816.49(a)(5) and it would go beyond the

requirements of TR-60 to also reference it in Sec. 816.49(a)(9)(ii)(A).

Two commenters suggested that 30 CFR 816.49(a)(9)(ii) (A) and (B)

be clarified to ensure that structures meeting SCS Class B or C

criteria and the MSHA size criteria are designed and constructed to

safely pass the precipitation event specified by SCS and not the 100-

year 6-hour event. OSM does not agree that clarification is necessary,

because the rule is clear that impoundments meeting MSHA criteria must

be designated and constructed to MSHA requirements and impoundments

meeting the SCS Class B or C criteria, regardless of size, have to be

designed and constructed to safely pass the emergency spillway

hydrograph specified in Sec. 816.49(a)(9)(ii)(A). Therefore, OSM is

issuing the final rule as it was proposed.

As proposed, existing 30 CFR 816.49(a)(10) is redesignated as

Sec. 816.49(a)(11). OSM revised redesignated section

Sec. 816.49(a)(11)(iv) to clarify that impoundments meeting the SCS

Class B or C criteria for dams in TR-60, like those meeting MSHA

criteria, may not be inspected by a qualified registered professional

land surveyor.

Existing 30 CFR 816.49(a)(11) is redesignated as

Sec. 816.49(a)(12). OSM revised redesignated Sec. 816.49(a)(12) to add

the requirement that impoundments meeting the SCS Class B or C criteria

for dams in TR-60 be examined in accordance with the requirements in 30

CFR 77.216-3 of the MSHA rules. In the preamble to the proposed rules

(June 28, 1991 (56 FR 29777)), the word not was left out of a sentence

and reversed the intention of a part of the discussion. The sentence

should have read ``OSM agrees with MSHA's proposed revisions to 30 CFR

77.216-3 but does not need to modify its proposed regulatory text for

30 CFR 816.49(a)(12) to be consistent with the MSHA proposal at this

time.'' Three commenters submitted their opposition to OSM's apparent

adoption of the proposed MSHA regulations without adequate public

comment. OSM did not intend to adopt MSHA's proposed rules. OSM regrets

this misunderstanding. However, on March 2, 1992, MSHA published its

final rules for 30 CFR 77.216-3. These final rules are incorporated by

reference through OSM's redesignated 30 CFR 816.49(a)(12). The last

sentence of the final version Sec. 816.49(a)(12) is reworded for

clarity from the proposal. There was no substantive change only

grammatical improvement.

One commenter opposed the requirement that impoundments meeting the

SCS Class B and C criteria, but not the MSHA size criteria, be examined

in accordance with the requirements of 30 CFR 77.216-3 of the MSHA

rules. OSM disagrees with this comment because the hazard associated

with impoundments meeting the SCS Class B or C justifies the

examination requirements of the MSHA rules.

OSM revised 30 CFR 816.49(c)(2)(i), dealing with requirements for

temporary impoundments, by adding the requirement that impoundments

meeting the SCS Class B or C criteria for dams in TR-60 as well as

impoundments meeting the size or other criteria of 30 CFR 77.216(a),

shall be designed to control the precipitation of the probable maximum

precipitation of a 6-hour or greater event specified by the regulatory

authority. Two commenters suggested rethinking the allowance of storage

based impoundments where failure could cause loss of life or serious

property damage. They believe there should be requirements to have

onsite personnel to insure structural integrity. OSM disagrees with

this comment because existing design, performance, inspection, and

maintenance requirements of the regulations provide adequate

safeguards. OSM believes this allowance is useful for those

impoundments where the runoff area is small, or where pumps or a decant

structure would be used to control the water level in the facility. OSM

believes that current, prudent, engineering practice requires that at

least 90 percent of the water stored during the design precipitation

event be removed within the 10-day period following the event. OSM also

recognizes that the safety of such structures can be reasonably assured

by requiring that they meet especially stringent design precipitation

event requirements. 30 CFR 816.49(c)(2) (i) and (ii) reflect this

philosophy by requiring such stringent requirements.

OSM revised 30 CFR 816.49(c)(2)(ii) as proposed by referencing

paragraph (c)(2)(i) and thus identify which impoundments must meet the

requirements of paragraph (c)(2)(ii).

Finally, OSM revised Secs. 784.10 and 816.10 which contain data on

the information collection requirements for Parts 784 and 816,

respectively. These revisions update the data contained in the sections

by including the estimated reporting burden per respondent for

complying with the information collection requirements previously

approved by the Office of Management and Budget.

Reference Materials

Reference materials used to develop this final rule are as follows:

U.S. Soil Conservation Service, Earth Dams and Reservoirs:

Technical Release 60, 1985.

U.S. Soil Conservation Service, Pond: Practice Standard 378,

1985.

U.S. Mining Enforcement and Safety Administration, Engineering

and Design Manual--Coal Refuse Disposal Facilities: Prepared by

D'Appolonia Consulting Engineers, Inc., Pittsburgh, Pa., 1975.

III. Procedural Matters

Effect in Federal Program States and on Indian Lands

The rule applies through cross-referencing in those States with

Federal programs. This includes California, Georgia, Idaho,

Massachusetts, Michigan, North Carolina, Oregon, Rhode Island, South

Dakota, Tennessee, and Washington. The Federal programs for these

States appear at 30 CFR Parts 905, 910, 912, 921, 922, 933, 937, 939,

941, 942, and 947, respectively. The rule also applies through cross-

referencing to Indian lands under the Federal program for Indian lands

as provided in 30 CFR Part 750.

Effect on State Programs

Following promulgation of the final rule, OSM will evaluate

permanent State regulatory programs approved under section 503 of SMCRA

to determine whether any changes in these programs will be necessary.

If the Director determines that certain State program provisions should

be amended in order to be made no less effective than the revised

Federal rules, the individual States will not be notified in accordance

with provisions of 30 CFR 732.17.

Federal Paperwork Reduction Act

The collections of information contained in this rule have been

approved by the Office of Management and Budget under 44 U.S.C. 3501 et

seq. and assigned clearance numbers 1029-0036, 1029-0039, 1029-0047 and

1029-0048.

Executive Order 12778; Civil Justice Reform Certification

This final rule has been reviewed under the applicable standards of

section 2(b)(2) of Executive Order 12778, Civil Justice Reform (56 FR

55195). In general, the requirements of section 2(b)(2) of Executive

Order 12778 are covered by the preamble discussion of the final rule.

Additional remarks follow concerning individual elements of the

Executive Order:

A. What Is the Preemptive Effect, If Any, To Be Given to the

Regulation?

The final rule would have the same preemptive effect as other

standards adopted pursuant to SMCRA. To retain primacy, States have to

adopt and apply standards for their regulatory programs that are no

less effective than those set forth in OSM's rules. Any State law is

inconsistent with, or that would preclude implementation of this final

rule, would be subject to preemption under SMCRA section 505 and

implementing regulations at 30 CFR 730.11. To the extent that the final

rules would result in preemption of State law, the provisions of SMCRA

are intended to preclude inconsistent State laws and regulations. This

approach is established in SMCRA, and has been judicially affirmed. See

Hodel v. Virginia Surface Mining and Reclamation Ass'n, 452 U.S. 264

(1981).

B. What Is the Effect on Existing Federal Law or Regulation, If Any,

Including All Provisions Repealed or Modified?

This rule modifies the implementation of SMCRA as described herein,

and is not intended to modify the implementation of any other Federal

statute. The preceding discussion of this rule specifies the Federal

regulatory provisions that are affected by this rule.

C. Does the Rule Provide a Clear and Certain Legal Standard for

Affected Conduct Rather Than a General Standard, While Promoting

Simplification and Burden Reduction?

The standards established by this rule are as clear and certain as

practicable, given the complexity of topics covered and the mandates of

SMCRA.

D. What Is the Retroactive Effect, If Any, To Be Given to the

Regulation?

This rule is not intended to have a retroactive effect.

E. Are Administrative Proceedings Required Before Parties May File Suit

in Court? Which Proceedings Apply? Is the Exhaustion of Administrative

Remedies Required?

No administrative proceedings are required before parties may file

suit in court challenging the provisions of this rule under section

526(a) of SMCRA, 30 U.S.C. 1276(a).

Prior to any judicial challenge to this application of the rule,

however, administrative procedures must be exhausted. In situations

involving OSM application of the rule, applicable administrative

procedures may be found at 43 CFR Part 4. In situations involving State

regulatory authority application of provisions equivalent to those

contained in this rule, applicable administrative procedures are set

forth in the particular State program.

F. Does the Rule Define Key Terms, Either Explicitly or By Reference to

Other Regulations or Statutes That Explicitly Define Those Items?

Terms which are important to the understanding of this rule are set

forth in 30 CFR 700.5 and 701.5.

G. Does the Rule Address Other Important Issues Affecting Clarity and

General Draftsmanship of Regulations Set Forth by the Attorney General,

With the Concurrence of the Director of the Office of Management and

Budget, That Are Determined To Be in Accordance With the Purpose of the

Executive Order?

The Attorney General and the Director of the Office of Management

and Budget have not issued any guidance on this requirement.

Executive Order 12866

This rule has been reviewed under Executive Order 12866.

Regulatory Flexibility Act

The DOI has determined that this final rule will not have a

significant effect on a substantial number of small entities under the

Regulatory Flexibility Act, 5 U.S.C. 601 et seq. The rule would affect

a relatively small number of surface coal mining operations. The rule

does not distinguish between small and large entities. The economic

effects of the proposed rule are estimated to be minor, and no

incremental economic effects are anticipated as a result of the rule.

National Environmental Policy Act

OSM has prepared an environmental assessment (EA), and has made a

finding of no significant impact (FONSI) that this rule will not

significantly affect the quality of the human environment under section

102(2)(C) of the National Environmental Policy Act of 1969 (NEPA), 42

U.S.C 4332(2)(C). The EA and FONSI are on file in the OSM

Administrative Record in Room 660, 800 North Capitol Street, NW.,

Washington, DC.

Agency Approval

Section 516(a) requires that, with respect to rules directed toward

the surface effects of underground mining, OSM must obtain written

concurrence from the head of the department which administers the

Federal Mine Safety and Health Act of 1977, the successor to the

Federal Coal Mine Health and Safety Act of 1969. OSM has obtained the

written concurrence of the Assistant Secretary for Mine Safety and

Health Administration, U.S. Department of Labor.

Author

The principal author of this rule is Donald E. Stump Jr., P.E.,

OSM, Ten Parkway Center, Pittsburgh, PA 15220; Telephone: 412-937-

2164.

List of Subjects

30 CFR Part 701

Law enforcement, Surface mining, Underground mining.

30 CFR Part 780

Incorporation by reference, Reporting and recordkeeping

requirements, Surface mining.

30 CFR Part 784

Incorporation by reference, Reporting and recordkeeping,

Underground mining.

30 CFR Part 816

Environmental protection, Incorporation by reference, Reporting and

recordkeeping requirements, Surface mining.

30 CFR Part 817

Environmental protection, Incorporation by reference, Reporting and

recordkeeping requirements, Underground mining.

Dated: July 22, 1994.

Bob Armstrong,

Assistant Secretary for Land and Minerals Management.

Accordingly 30 CFR Parts 701, 780, 784, 816, and 817 are amended as

set forth below.

PART 701--PERMANENT REGULATORY PROGRAM

1. The authority citation for Part 701 continues to read as

follows:

Authority: Pub. L. 95-87 (30 U.S.C. 1201 et seq.), and Pub. L.

100-34.

2. In Sec. 701.5, the definition of other treatment facilities is

added as set forth below; the definition of siltation structure in

Sec. 816.46(a)(1) is transferred in alphabetical order to Sec. 701.5;

and in Sec. 816.46 the designation (a)(1) is reserved:

Sec. 701.5 Definitions.

* * * * *

Other treatment facilities mean any chemical treatments, such as

flocculation or neutralization, or mechanical structures, such as

clarifiers or precipitators, that have a point source discharge and are

utilized:

(a) To prevent additional contributions of dissolved or suspended

solids to streamflow or runoff outside the permit area, or

(b) To comply with all applicable State and Federal water-quality

laws and regulations.

* * * * *

PART 780--SURFACE MINING PERMIT APPLICATIONS--MINIMUM REQUIREMENTS

FOR RECLAMATION AND OPERATION PLAN

3. The authority citation for Part 780 continues to read as

follows:

Authority: Pub. L. 95-87, 30 U.S.C. 1201 et seq., as amended;

sec. 115 of Pub. L. 98-146, 30 U.S.C. 1257; 16 U.S.C. 470 et seq.;

and Pub. L. 100-34.

4. Section 780.10 is revised to read as follows:

Sec. 780.10 Information collection.

(a) The collections of information contained in Part 780 have been

approved by the Office of Management and Budget under 44 U.S.C. 3501 et

seq. and assigned clearance number 1029-0036. The information will be

used by the regulatory authority to determine whether the applicant can

comply with the applicable performance and environmental standards in

Public Law 95-87. Response is required to obtain a benefit.

(b) Public Reporting burden for this information is estimated to

average 28 hours per response, including the time for reviewing

instructions, searching existing data sources, gathering and

maintaining the data needed, and completing and reviewing the

collection of information. Send comments regarding this burden estimate

or any other aspect of this collection of information, including

suggestions for reducing the burden, to the Information Collection

Clearance Officer, Office of Surface Mining Reclamation and

Enforcement, 1951 Constitution Ave., NW., Room 640 NC, Washington, DC

20240; and the Office of Management and Budget, Paperwork Reduction

Project 1029-0036, Washington, DC 20503.

5. Section 780.25 is amended by revising the heading and

introductory text of paragraph (a), and by revising paragraphs (a)(2)

introductory text, (a)(3) introductory text, (b), (c)(3), and the first

sentence of paragraph (f) to read as follows:

Sec. 780.25 Reclamation plan: Siltation structures, impoundments,

banks, dams, and embankments.

(a) General. Each application shall include a general plan and a

detailed design plan for each proposed siltation structure, water

impoundment, and coal processing waste bank, dam, or embankment within

the proposed permit area.

(1) * * *

(2) Impoundments meeting the Class B or C criteria for dams in the

U.S. Department of Agriculture, Soil Conservation Service Technical

Release No. 60 (210-VI-TR60, Oct. 1985), ``Earth Dams and Reservoirs,''

Technical Release No. 60 (TR-60) shall comply with the requirements of

this section for structures that meet or exceed the size of other

criteria of the Mine Safety and Health Administration (MSHA). The

technical release is hereby incorporated by reference. This

incorporation by reference was approved by the Director of the Federal

may be obtained from the National Technical Information Service (NTIS),

5285 Port Royal Road, Springfield, Virginia 22161, order No. PB 87-

157509/AS. Copies can be inspected at the OSM Headquarters Office,

Office of Surface Mining Reclamation and Enforcement, Administrative

Record, Room 660, 800 North Capitol Street, Washington, DC or at the

Office of the Federal Register, 800 North Capitol Street, NW., suite

700, Washington, DC. Each detailed design plan for a structure that

meets or exceeds the size or other criteria of MSHA, Sec. 77.216(a) of

this chapter shall:

* * * * *

(3) Each detailed design plan for structures not included in

paragraph (a)(2) of this section shall:

* * * * *

(b) Siltation structures. Siltation structures shall be designed in

compliance with the requirements of Sec. 816.46 of this chapter.

(3) For impoundments not included in paragraph (a)(2) of this

section, the regulatory authority may establish through the State

program approval process, engineering design standards that ensure

stability comparable to a 1.3 minimum static safety factor in lieu of

engineering tests to establish compliance with the minimum static

safety factor of 1.3 specified in Sec. 816.49(a)(4)(ii) of this

chapter.

* * * * *

(f) If the structure meets the Class B or C criteria for dams in

TR-60 or meets the size or other criteria of Sec. 77.216(a) of this

chapter, each plan under paragraphs (b), (c), and (e) of this section

shall include a stability analysis of the structure. * * *

* * * * *

PART 784--UNDERGROUND MINING PERMIT APPLICATIONS--MINIMUM

REQUIREMENTS FOR RECLAMATION AND OPERATION PLAN

6. The authority citation for Part 784 continues to read as

follows:

Authority: Pub. L. 95-87, 30 U.S.C. 1201 et seq., as amended;

sec. 115 of Pub. L. 98-146, 30 U.S.C. 1257; 16 U.S.C. 470 et seq.;

and Pub. L. 100-34.

7. Section 784.16 is amended by revising the heading and

introductory text of paragraph (a), and by revising paragraphs (a)(2)

introductory text, (a)(3) introductory text, (b), (c)(3), and the first

sentence of paragraph (f) to read as follows:

Sec. 784.16 Reclamation plan: Siltation structures, impoundments,

banks, dams, and embankments.

(a) General. Each application shall include a general plan and a

detailed design plan for each proposed siltation structure, water

impoundment, and coal processing waste bank, dam, or embankment within

the proposed permit area.

(1) * * *

(2) Impoundments meeting the Class B or C criteria for dams in the

U.S. Department of Agriculture, Soil Conservation Service Technical

Release No. 60 (210-VI-TR60, Oct. 1985), ``Earth Dams and Reservoirs,''

Technical Release No. 60 (TR-60) shall comply with the requirements of

this section for structures that meet or exceed the size or other