[Federal Register Volume 59, Number 202 (Thursday, October 20, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-25959]
[[Page Unknown]]
[Federal Register: October 20, 1994]
_______________________________________________________________________
Part II
Department of the Interior
_______________________________________________________________________
Office of Surface Mining Reclamation and Enforcement
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30 CFR Part 701 et al.
Surface Coal Mining and Reclamation Operations; Permanent Regulatory
Program; Performance Standards; Permanent and Temporary Impoundments;
Final Rule
DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Parts 701, 780, 784, 816, and 817
RIN 1029-AB40
Surface Coal Mining and Reclamation Operations; Permanent
Regulatory Program; Performance Standards; Permanent and Temporary
Impoundments
AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.
ACTION: Final rule.
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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
Register in accordance with 5 U.S.C. 552(a) and 1 CFR Part 51. Copies
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.
(c) * * *
(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
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
Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies
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. 817.46 of this chapter.
(c) * * *
(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. 817.49(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 816--PERMANENT PROGRAM PERFORMANCE STANDARDS--SURFACE MINING
ACTIVITIES
8. The authority citation for Part 816 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; and Pub. L. 100-34.
9. Section 816.10 is revised to read as follows:
Sec. 816.10 Information collection.
(a) The collections of information contained in part 816 have been
approved by the Office of Management and Budget under 44 U.S.C. 3501 et
seq. and assigned clearance number 1029-0047. The information will be
used by the regulatory authority to monitor and inspect surface coal
mining activities to ensure that they are in compliance with the
Surface Mining Control and Reclamation Act. Response is required to
obtain a benefit.
(b) Public Reporting Burden for this information is estimated to
average 1 hour 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 (1029-0047), Washington, DC 20503.
10. In Sec. 816.46, paragraph (a) is revised to read as follows:
Sec. 816.46 Hydrologic balance: Siltation structures.
(a) For the purpose of this section only, disturbed areas shall not
include those areas--
(1) In which the only surface mining activities include diversion
ditches, siltation structures, or roads that are designed constructed
and maintained in accordance with this part; and
(2) For which the upstream area is not otherwise disturbed by the
operator.
* * * * *
11. Section 816.46 is amended by revising paragraph (c)(2) to read
as follows:
Sec. 816.46 Hydrologic balance: Siltation structures.
* * * * *
(c) * * *
(2) Spillways. A sedimentation pond shall include either a
combination of principal and emergency spillways or single spillway
configured as specified in Sec. 816.49(a)(9).
* * * * *
12. Section 816.49 is amended by redesignating paragraphs (a)(1)
through (a)(12) as paragraphs (a)(2) through (a)(13) and adding new
paragraph (a)(1) to read as follows:
Sec. 816.49 Impoundments.
(a) * * *
(1) 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,''
1985 shall comply with ``Minimum Emergency Spillway Hydrologic
Criteria'' table in TR-60 and the requirements of this section. The
technical release is hereby incorporated by reference. This
incorporation by reference was approved by the Director of the Federal
Register in accordance with 5 U.S.C. 552(a) and 1 CFR Part 51. Copies
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.
* * * * *
13. Section 816.49 is amended by revising newly redesignated
paragraph (a)(4) to read as follows:
Sec. 816.49 Impoundments.
(a) * * *
(4) Stability. (i) An impoundment meeting the Class B or C criteria
for dams in TR-60, or the size or other criteria of Sec. 77.216(a) of
this title shall have a minimum static safety factor of 1.5 for a
normal pool with steady state seepage saturation conditions, and a
seismic safety factor of at least 1.2.
(ii) Impoundments not included in paragraph (a)(4)(i) of this
section, except for a coal mine waste impounding structure, shall have
a minimum static safety factor of 1.3 for a normal pool with steady
state seepage saturation conditions or meet the requirements of
Sec. 780.25(c)(3).
* * * * *
14. Section 816.49 is amended by adding the following sentence to
end of newly redesignated paragraph (a)(5) to read as follows:
Sec. 816.49 Impoundments.
(a) * * *
(5) * * * Impoundments meeting the 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.
* * * * *
15. Section 816.49 is amended by revising the last sentence of
newly redesignated paragraph (a)(6)(i) to read as follows:
Sec. 816.49 Impoundments.
(a) * * *
(6) * * *
(i) * * * For an impoundment meeting the Class B or C criteria for
dams in TR-60, or the size or other criteria of Sec. 77.216(a) of this
title, foundation investigation, as well as any necessary laboratory
testing of foundation material, shall be performed to determine the
design requirements for foundation stability.
* * * * *
16. Section 816.49 is amended by revising newly redesignated
paragraphs (a)(9)(ii) (A) and (B) and adding a new (C) to read as
follows:
Sec. 816.49 Impoundments.
(a) * * *
(9) * * *
(ii) * * *
(A) For an impoundment meeting the Class B or C criteria for dams
in TR-60, the emergency spillway hydrograph criteria in the ``Minimum
Emergency Spillway Hydrologic Criteria'' table in TR-60, or greater
event as specified by the regulatory authority.
(B) For an impoundment meeting or exceeding the size or other
criteria of Sec. 77.216(a) of this title, a 100-year 6-hour event, or
greater event as specified by the regulatory authority.
(C) For an impoundment not included in paragraph (a)(9)(ii) (A) and
(B) of this section, a 25-year 6-hour or greater event as specified by
the regulatory authority.
* * * * *
17. Section 816.49 is amended by revising the first sentence of
newly redesignated paragraph (a)(11)(iv) to read as follows:
Sec. 816.49 Impoundments.
(a) * * *
(11) * * *
(iv) In any State which authorizes land surveyors to prepare and
certify plans in accordance with Sec. 780.25(a) of this chapter, a
qualified registered professional land surveyor may inspect any
temporary or permanent impoundment that does not meet the SCS Class B
or C criteria for dams in TR-60, or the size or other criteria of
Sec. 77.216(a) of this title and certify and submit the report required
by paragraph (a)(11)(ii) of this section, except that all coal mine
waste impounding structures covered by Sec. 816.84 of this chapter
shall be certified by a qualified registered professional engineer. * *
*
* * * * *
18. Section 816.49 is amended by revising newly redesignated
paragraph (a)(12) to read as follows:
Sec. 816.49 Impoundments.
(a) * * *
(12) Impoundments meeting the SCS Class B or C criteria for dams in
TR-60, or the size or other criteria of Sec. 77.216 of this title must
be examined in accordance with Sec. 77.216-3 of this title.
Impoundments not meeting the SCS Class B or C criteria for dams in TR-
60, or subject to Sec. 77.216 of this title, shall be examined at least
quarterly. A qualified person designated by the operator shall examine
impoundments for the appearance of structural weakness and other
hazardous conditions.
* * * * *
19. Section 816.49 is amended by revising paragraph (c)(2) (i) and
(ii) to read as follows:
Sec. 816.49 Impoundments.
* * * * *
(c) * * *
(2) * * *
(i) Impoundments meeting the SCS Class B or C criteria for dams in
TR-60, or the size or other criteria of Sec. 77.216(a) of this title
shall be designed to control the precipitation of the probable maximum
precipitation of a 6-hour event, or greater event specified by the
regulatory authority.
(ii) Impoundments not included in paragraph (c)(2)(i) of this
section shall be designed to control the precipitation of the 100-year
6-hour event, or greater event specified by the regulatory authority.
* * * * *
PART 817--PERMANENT PROGRAM PERFORMANCE STANDARDS--UNDERGROUND
MINING ACTIVITIES
20. The authority citation for Part 817 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; and Pub. L. 100-34.
21. In Sec. 817.46, paragraph (a) is revised to read as follows:
Sec. 817.46 Hydrologic balance: Siltation structures.
(a) For the purposes of this section only, disturbed areas shall
not include those areas--
(1) In which the only surface mining activities include diversion
ditches, siltation structures, or roads that are designed, constructed
and maintained in accordance with this part; and
(2) For which the upstream area is not otherwise distributed by the
operator.
* * * * *
22. Section 817.46 is amended by revising paragraph (c)(2) to read
as follows:
Sec. 817.46 Hydrologic balance: Siltation structures.
* * * * *
(c) * * *
(2) Spillways. A sedimentation pond shall include either a
combination of principal and emergency spillways or single spillway
configured as specified in Sec. 817.49(a)(9).
* * * * *
23. Section 817.49 is amended by redesignating paragraphs (a)(1)
through (a)(12) as paragraphs (a)(2) through (a)(13) and adding new
paragraph (a)(1) to read as follows:
Sec. 817.49 Impoundments.
(a) * * *
(1) 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,''
shall comply with the, ``Minimum Emergency Spillway Hydrologic
Criteria,'' table in TR-60 and the requirements of this section. The
technical release is hereby incorporated by reference. This
incorporation by reference was approved by the Director of the Federal
Register in accordance with 5 U.S.C. 552(a) and 1 CFR Part 51. Copies
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.
* * * * *
24. Section 817.49 is amended by revising newly redesignated
paragraph (a)(4) to read as follows:
Sec. 817.49 Impoundments.
(a) * * *
(4) Stability. (i) An Impoundment meeting the SCS Class B or C
criteria for dams in TR-60, or the size or other criteria of
Sec. 77.216(a) of this title shall have a minimum static safety factor
of 1.5 for a normal pool with steady state seepage saturation
conditions, and a seismic safety factor of at least 1.2.
(ii) Impoundments not included in paragraph (a)(4)(i) of this
section, except for a coal mine waste impounding structure, shall have
a minimum static safety factor of 1.3 for a normal pool with steady
state seepage saturation conditions or meet the requirements of
Sec. 784.16(c)(3).
* * * * *
25. Section 817.49 is amended by adding the following sentence to
the end of newly designated paragraph (a)(5) to read as follows:
Sec. 817.49 Impoundments.
(a) * * *
(5) * * * 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.
* * * * *
26. Section 817.49 is amended by revising the last sentence of
newly redesignated paragraph (a)(6)(i) to read as follows:
Sec. 817.49 Impoundments.
(a) * * *
(6) * * *
(i) * * * For an impoundment meeting the SCS Class B or C criteria
for dams in TR-60, or the size or other criteria of Sec. 77.216(a) of
this title, foundation investigation, as well as any necessary
laboratory testing of foundation material, shall be performed to
determine the design requirements for foundation stability.
* * * * *
27. Section 817.49 is amended by revising newly redesignated
paragraphs (a)(9)(ii) (A) and (B) and adding a new (C) to read as
follows:
Sec. 817.49 Impoundments.
(a) * * *
(9) * * *
(ii) * * *
(A) For an impoundment meeting the SCS Class B or C criteria for
dams in TR-60, the emergency spillway hydrograph criteria in the
``Minimum Emergency Spillway Hydrologic Criteria'' table in TR-60, or
greater event as specified by the regulatory authority.
(B) For an impoundment meeting or exceeding the size or other
criteria of Sec. 77.216(a) of this title, a 100-year 6-hour event, or
greater event as specified by the regulatory authority.
(C) For an impoundment not included in paragraph (a)(9)(ii) (A) and
(B) of this section, a 25-year 6-hour event, or greater event as
specified by the regulatory authority.
* * * * *
28. Section 817.49 is amended by revising the first sentence of
newly redesignated paragraph (a)(11)(iv) to read as follows:
Sec. 817.49 Impoundments.
(a) * * *
(11) * * *
(iv) In any State which authorizes land surveyors to prepare and
certify plans in accordance with Sec. 784.16(a) of this chapter, a
qualified registered professional land surveyor may inspect any
temporary or permanent impoundment that does not meet the SCS Class B
or C criteria for dams in TR-60, or the size or other criteria of
Sec. 77.216(a) of this title and certify and submit the report required
by paragraph (a)(11)(ii) of this section, except that all coal mine
waste impounding structures covered by Sec. 817.84 of this chapter
shall be certified by a qualified registered professional engineer. * *
*
* * * * *
29. Section 817.49 is amended by revising newly redesignated
paragraph (a)(12) to read as follows:
Sec. 817.49 Impoundments.
(a) * * *
(12) Impoundments meeting the SCS Class B or C criteria for dams in
TR-60, or the size or other criteria of Sec. 77.216 of this title must
be examined in accordance with Sec. 77.216-3 of this title.
Impoundments not meeting the SCS Class B or C Criteria for dams in TR-
60, or subject to Sec. 77.216 of this title, shall be examined at least
quarterly. A qualified person designated by the operator shall examine
impoundments for the appearance of structural weakness and other
hazardous conditions.
* * * * *
30. Section 817.49 is amended by revising paragraphs (c)(2) (i) and
(ii) to read as follows:
Sec. 817.49 Impoundments.
* * * * *
(c) * * *
(2) * * *
(i) Impoundments meeting the SCS Class B or C criteria for dams in
TR-60, or the size or other criteria of Sec. 77.216(a) of this title
shall be designed to control the precipitation of the probable maximum
precipitation of a 6-hour event, or greater event specified by the
regulatory authority.
(ii) Impoundments not included in paragraph (c)(2)(i) of this
section shall be designed to control the precipitation of the 100-year
6-hour event, or greater event specified by the regulatory authority.
* * * * * *
[FR Doc. 94-25959 Filed 10-19-94; 8:45 am]
BILLING CODE 4310-05-M
