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Current Regulatory Framework Numerous federal and state statutes and regulations apply to coal mining activities, including disposal of coal waste in impoundments. Some of these statutes and regulations are specific to coal mining, such as the Federal Mine Safety and Health Act (1977) and the Surface Mining and Reclamation Act of 1977 (SMCRA), and regulations adopted thereunder. Coal mining activities and facilities are subject to more widely applicable statutes and regulations, such as the Clean Air Act and the Clean Water Act and regulations adopted thereunder. Nearly every coal waste facility is subject to regulatory requirements imposed by MSHA and either OSM or a state with a regulatory program approved under SMCRA. Because state program organization varies from state to state, and because some states opt not to obtain primacy, this chapter focuses on federal statutory provisions and MSHA and OSM regulations that directly relate to the design, construction, operation, and closure of refuse impoundments, as well as alternative refuse disposal techniques. Other federal statutes that may relate to refuse impoundments and refuse disposal, including the Clean Air Act (1970), the Clean Water Act (1977), the Safe Drinking Water Act (1974), the Resource Conservation and Recovery Act (1976), the Migratory Bird Treaty Act (1918), and the Endangered Species Act (1973), are discussed in less detail. These statutes involve federal agencies, like the U.S. Environmental Protection Agency (EPA), the U.S. Army Corps of Engineers, the U.S. Fish and Wildlife Service, as well as state agencies with an implementation role under those statutes. FEDERAL MINE SAFETY AND HEALTH ACT Congress specifically stated that the purpose of the Federal Mine Safety and Health Act of 1977 was to establish mandatory standards to protect the health and safety of miners (30 U.S.C. [United States Code] § 801 (a) and 35
36 COAL WASTEIMPOUNDMENTS Ugly. This limitation is important in assessing MSHA's regulatory respon- sibility and authority associated with potential impoundment breakthroughs and failures that do not affect the health and safety of miners but may affect persons, communities, or ecosystems downstream. MSHA developed standards for impoundments and refuse piles after the Buffalo Creek disaster in February 1972 (Sidebar 1.3) and promulgated regulations to address the design, review, and monitoring of these structures (30 C.F.R. tCode of Federal Regulations] §§ 77.214, 77.215, and 77.216~. While these regulations address a variety of health and safety issues pertaining to all aspects of coal mining, Section 77.216 is specifically directed at water, sediment, and slurry impoundments and impounding structures. It defines the identification, engineering plan, inspection, hazard abatement, reporting, certification, and abandonment requirements for impoundment systems that fall under MSHA's jurisdiction. Impoundments that are large enough to be regulated by MSHA are commonly referred to as MSHA-class impoundments (30 C.F.R. § 77.216~. These structures impound water, sediment, or slurry to an elevation of 5 feet or more and a storage volume of 20 acre-feet or more, or impound to an elevation of 20 feet or more, or present a hazard to coal miners, as determined by the local district manager. The following discussion, while not a comprehensive overview of the regulatory requirements of 30 C.F.R. § 77.216, presents the salient points of the MSHA regulations that are relevant to limiting the potential for refuse impoundment breakthroughs and failures. Requirements for Engineering Plans Regulations contained in 30 C.F.R. § 77.216 require that plans for the design, construction, and maintenance of MSHA-class impoundments be prepared and submitted to MSHA for approval before construction begins. Such plans must include information on the physical and engineering properties of foundation materials and of embankment construction materials. They must include a stability analysis of the impounding structure and identify the location of surface and underground mine workings near the facility. Specific to underground workings, 30 C.F.R. § 77.216-2 (a)~14) requires that: The locations of surface and underground coal mine workings including the depth and extent of such workings within the area 500 feet around the perimeter, [should be] shown at a scale not to exceed one inch = 500 feet. =
CURRENT REG ULA TOR Y FRAME WORK 37 A registered professional engineer must certify that the impounding structure has been designed in accordance with prudent engineering practice. Review and Approval Process MSHA is subdivided into 11 districts, each under the direction of a district manager who is responsible for a given geographic region of the United States (Figure 2.1~. The districts have multiple offices to accom- modate the day-to-day process of inspecting mines. Approval of engineering plans and inspections is carried out by the district office staff Most of the professional employees in these offices are inspectors who report to the district manager through an intermediate supervisor and who regularly visit the mines in the area. The MSHA Mine Waste and Geotechnical Engineering Division in Pittsburgh, Pennsylvania has also been established within the agency structure to provide districts with technical expertise in their review of the engineering plans. This technical team acts in a consulting capacity to the district offices. When a design for a new coal refuse impoundment, or a modification to an existing impoundment, is submitted to the district office, the district manager determines whether to approve the submission, ask for more information, or ask for assistance from the technical team. In most instances, the district manager asks the technical team for assistance. The technical team has no approval authority and acts only in the capacity of a technical consultant to the district manager. Facility construction or modification can only commence after the district manager has approved the plan. The technical team reviews the engineering plans, designs, and data submitted by the professional engineer. The primary focus of the review is the stability of the impounding structure. If the technical team cannot reach a decision based on the information submitted, it asks for additional information. Typically, several exchanges occur between the technical team and the design engineer to ensure that the engineering plans are both complete and technically sound. When the technical team is satisfied with the engineering design of an impoundment, it recommends that the district manager approve the plan. Because MSHA's primary concern is the welfare of miners, MSHA's focus for underground mining with regard to impoundments is the effects of mining on embankment stability, and the possibility of water inrush into an underground mine or onto the surface area of mines. To deal with these concerns, MSHA relies on the operator's determination of the presence of
38 Am. s ~ / ~ ~ f ~~1~; -~si~ tft {' ~ i s ~~ I,, ~ \ i 1 .9 s L \.- ~ I ~ District offices COAL WASTEIMPOUNDMENTS i : j~ ~ 1~ ~~\ ~ i_~f' 1 = Wilkes-Barre, PA 7 = Barbourville, KY 2 = Hunker, PA 8 = Vincennes, IN 3 = Morgantown, WV 9 = Denver, CO 4 = Mount Hope, WV 10 = Madisonville, KY 5 = Norton, VA 11 = Birmingham, AL 6 = Pikeville, KY FIGURE 2.1 Coal Mine Safety and Health Administration district offices. Modified Tom data provided by MSHA. underground workings. The review procedures provided to this committee did not indicate any independent determination of the depth and extent of underground workings. Inspection Requirements To be approved, a construction plan must contain a plan for construction surveillance, maintenance, and repair of the impounding structure; monitoring of the disposal process is mandatory (30 C.F.R. § 77.216-2 (a)~15~. Compaction of the material is the primary concern, including the method of emplacing the material, its size and consistency, and thickness of the layers. This specific monitoring of construction is unique to each impoundment and detailed in the approved plan. All MSHA-class water, sediment, and slurry impoundments must be inspected at least once every
CURRENT REGULA TORY FRAMEWORK 39 seven days by an MSHA-certified, "qualified person." The MSHA policy manual states that this person "must be...trained according to an approved 30 C.F.R. § 77.216 training plan that has a program of instruction on impoundment inspection, ...pass an evaluation, [and may be required to demonstrate successful training by] oral, written, or practical demonstration." The MSHA regulations for monitoring the stability of an embankment are comprehensive. If the MSHA regulations for monitoring are met, then regulations administered by the state are usually met as well, except that MSHA does not require monitoring of discharge points for water quality. The MSHA requirements for monitoring are specific, namely: The impoundment must be larger than a minimum size. A qualified person must make the examination. The examination must be made at intervals not to exceed seven days. Observations are required for the appearance of structural weakness and other hazardous conditions. All instruments shall be monitored during this examination. · The results of the examination are recorded and reviewed by one of the officials in charge of the mine. The MSHA regulations require impoundment operators to develop specific plans and procedures for dealing with hazardous or emergency situations, which includes notifying the district manager. If a hazardous condition is detected, the monitoring interval is reduced to at least once each eight hours until the hazard abates. Monitoring requirements are designed to ascertain the stability of the embankment. Examiners look for cracks, seeps, or slumping material on the slopes. The instrumentation usually measures the extent of water seepage within the embankment (higher levels can be destabilizing), and sometimes instruments are installed to detect movement within the body of the embankment. Another requirement during the examination is that the maintenance and conditions of the principal and emergency spillways be checked. In most instances, the required examination can be completed at or near the embankment. The regulations do not cover several aspects of monitoring impound- ment construction and operation. Even though the depth, thickness, and structure of the layers of rock and soil between the impoundment basin and a mined coal seam are addressed in the plan approval process, no specific monitoring requirements focus on this subject. In addition, the monitoring regulations do not require the inspector to address mine openings to the
40 COAL WASTEIMPOUNDMENTS surface from underground workings under the impoundment, nor bulkheads that might be installed within those openings. MSHA may require such monitoring in individual cases, but there is no regulatory requirement that it do so. In addition to the monitoring required of the impoundment operator, inspectors from MSHA and state agencies regularly inspect the impound- ment. The agency inspections satisfy regulatory or policy-required inspection schedules and have no effect on monitoring requirements the regulations impose on the operator. The Federal Mine Safety and Health Act requires MSHA to inspect each impoundment at least twice each year. (If the impoundment is associated with an underground mine it must be inspected four times a year.) In addition, qualified persons may be assigned to inspect the impoundment more often if MSHA deems it necessary. Reporting Obligations A report of operations documenting the overall condition and perform- ance of the refuse impoundment must be submitted to MSHA after construc- tion begins. The district manager, in the exercise of his discretion, determines the appropriate frequency case by case. A registered professional engineer must certify these annual reports, attesting that work accomplished at the facility during the past 12 months has been done according to the approved plan (30 C.F.R. § 77.216~. Observations The regulatory language in 30 C.F.R. § 77.216 speaks almost exclu- sively to the engineering aspects and stability of the embankment. There is little reference to the engineering design of the basin area or to areas other than the embankment of the impounding structure. The impoundment operator and professional engineer are responsible for providing information about underground mine workings, including the depth and extent of the workings. However, no regulation or standard industry practice instructs or guides the engineer in this task, nor is there a procedure for an independent verification of the information submitted. In addition, no specific regulation requires an evaluation of the breakthrough potential of impoundments. However, in practice, MSHA appears to have the jurisdiction to require an evaluation of breakthrough potential through indirect regulatory language. The regulations require that
CURRENT REG ULA TOR Y FRAME WORK 41 the engineering plans contain "other information pertinent to the impound- ment itself, including any identifiable natural or manmade features which could affect operation of the impoundment" (30 C.F.R. § 77.216-2~7~), and that MSHA be presented with "other such information pertaining to the stability of the impoundment and impounding structure which may be required" (30 C.F.R. § 77.216-2~18~. While neither of these requirements specifically obliges consideration of the potential interactions between the surface impoundment and underground mine workings, the language does allow MSHA the ability to require such evaluations. SURFACE MINING CONTROL AND RECLAMATION ACT SMCRA (30 U.S.C. §§ 1201 to 1328) established OSM within the Department of the Interior and assigned the agency authority to implement a national program to regulate the surface effects of coal mining activities. Congressional intent in adopting SMCRA was to protect "society and the environment from the adverse effects of surface coal mining operations" (30 U.S.C. § 1202 barb. This legislative and regulatory direction complements the intent of the Federal Mine Safety and Health Act, which provides for the health and safety of miners, by adding the SMCRA directive to protect the public arid to limit environmental effects. The program authority has been delegated to the states to perform the administrative and enforcement functions, but OSM retains oversight of program adequacy and administers the program in states without primacy. SMCRA specifies that, because of the diversity in terrain, climate, biology, geochemistry, and other physical conditions under which mining operations occur, the primary governmental responsibility for regulating surface coal mining and reclamation operations should rest with the states (30 U.S.C. § 1201(f)~. To achieve primary regulatory responsibility, often referred to as primacy, a state must develop a program that demonstrates the state's capability to carry out the relevant provisions of SMCRA (30 U.S.C. § 1253~. Once the Secretary of the Interior approves a state regulatory program, OSM assumes an oversight role, making inspections as necessary to evaluate the state's administration of their program and taking corrective action when necessary. Currently, 24 states have primacy: Alabama, Alaska, Arkansas, Colorado, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maryland, Mississippi, Missouri, Montana, New Mexico, North Dakota, Ohio, Oklahoma, Pennsylvania, Texas, Utah, Virginia, West Virginia, and Wyoming. Most of the regulatory requirements of these state programs are
~2 ~~ ~~_ Emily 10 Me OSLO Mullions ~ 30 C.F.R Cater VIt but in response to local coDcems ad conditions, some paws coffin ~-i~me~s mom extensive ~= Me federal ales. OSLO di~cHy reglues surface cost mining ad Lion operations on ~1 India lads ad ~ n~dmacy strew Comedy 12 ages do not bye s pdmscy paw (Argons, Csli~mis, George, Id~o, ~sine, ~ichig=, boa Collins, Oregon, Mode Island, South Dakota, Tennessee, ad Washington). Of Moses only Tennessee' Wasbi~on' ad blazons, bye si~iDc~ active sauce coal mining operations. Because He OSLO ablations in 30 C.F.R. Cheater VII k~ He Halve for stole ~_, as cater locust on ~ Idea Ins aver ~= He requbeme~s of ind~idua1 state gulf pa_. Sevem1 sections of He Sons He specific to He design cons~chon, ad maintenance of coal =~se i~oun~e~s. Over sections Apply in a more gene=1 Lisbon. Me Kellogg su_ ~gbU-s ~qubeme~s regave to limiting He potential fir i~oun_nt bre~ou~s ad ills. BuSr Hone Rule Hay coal Isle i~oun~e~s in He -~schi~ coalDelds He paced in volleys ad cat sad He pmex~hng drainage. S~C^, as weD as parallel state lags, governs He placement of mining mstedsls in or new s stew. SACS ~ 30 u.s.c. ~ 12650) contains general env~o~nt~ penance studs fir protecting saws ad fish ad wildlife. To cay out these and over requirements of the statutory pmgnun, Me OSh! pronoulps1eds ~deralbu0~r zone rulcin 1981, which provides(30 C.F.R.g 816.57): (a) No lad within 100 Met of a perennial skew or ~ inte-Ment steam shad be disturbed by surface mining ac~vides, unless We regulator author specifically ~thohzes surface mining sc~vides closer to, or through, such steam. We regulator authority may authorize such ac~vides only upon funding thy: (1) Surface mining ac~vides wiN not cause or contribute to the violation of Speckle State or Federal aver quality wades, Id -11 not Aversely Pact He Aver quaky Ad quality or other environmental resources of the steam. Fedeml SUCH rc~lshons at 30 C.F.R. # 701.5 include the alloying stccam-rclsted deOnihons: ' ~~~ me~ (s) s stream or reach of s skew that drains s watershed of ~ least one square mUe, or (b) s spew or reach of s stream that is =
CURRENT REGULA TOR Y FRAMEWORK below the local water table for at least some part of the year, and obtains its flow from both surface runoff end groundwater discharge. Perennial stream means a stream or part of a stream that flows continuously during all of the calendar year as a result of groundwater discharge or surface runoff. 43 Operators permitting a coal waste impoundment that lies within the buffer zone obtain waivers of this rule by obtaining Section 404 permits from the U.S. Army Corps of Engineers (see below). Requirements for Engineering Plans Impoundments that are constructed of, or that impound, coal waste materials must comply with the requirements of SMCRA at 30 U.S.C. §§ 1265(b)~13), 1265(b)(fy, and 1266(b)~5), and OSM regulations at 30 C.F.R. §§ 780.25, 816.49, 816.81 and 816.84. The rules require the submission of engineering plans for these impoundments. They also cross-reference the MSHA requirements for engineering plan content. They specify storm and freeboard design requirements, as well as minimum safety factors under reasonably foreseeable site conditions. Requirements for the embankment, foundation, and abutment conditions are addressed, as are seepage and allowance for settlement. OSM regulations (30 C.F.R. § 816.81(d)) require that all applications for coal mine waste disposal facilities, including all coal waste impound- ments, have a foundation investigation to determine design requirements for foundation stability. This rule specifically requires that the design include an analysis of foundation conditions that takes into consideration the effect of underground mine workings on the stability of the disposal facility. The regulations at 30 C.~.R. § 780.25 (e) also require that each design plan submitted for this type of facility include the results of a geotechnical investigation of the embankment foundation area. Finally, under 30 C.F.R. §780.25 (a)(l)(iv), each impoundment plan must include a survey describing the potential effect on the structure from subsidence of the subsurface strata resulting from past underground mining operations if underground mining has occurred.
44 COAL WASTEIMPOUNDMENTS Review and Approval Process The content of the permit applications for impoundments is specified in 30 C.F.R. § 780.25. When a design for a new coal refuse impoundment, or a modification to an existing impoundment, is submitted to the SMCRA regulatory authority, the plans are reviewed by a geologist or engineer. The reviewers determine whether the application is complete in responding to all applicable regulatory requirements, whether the information is technically sound, and whether the proposed design and supporting documentation is adequate to support the findings and conclusions that the regulatory authority must make before approving a permit application. Mine operators must obtain all necessary permits, approvals, and authorizations from MSHA and the SMCRA regulatory authority before beginning to construct the facility. Changes in construction and operation after permit issuance, such as expansion, require permit revisions under 30 C.F.R. §774.15. Inspection and Reporting Requirements The OSM regulations (30 C.F.R. § 816.49~11~) require that a qualified, registered professional engineer, experienced in the construction of impoundments, inspect each coal waste impoundment regularly during construction, upon completion of construction, and at least annually thereafter until the impoundment is removed or until the site receives final bond release. After each inspection, the engineer must provide the regulatory authority with a certified report that the impoundment has been constructed and maintained as designed and in accordance with the approved plan and all applicable regulatory requirements. The report must include a discussion of any appearance of instability, structural weakness, or other hazardous condition, depth and elevation of any impounded waters, existing storage capacity, any existing or required monitoring procedures and instrumenta- tion, and any other aspects of the structure affecting stability. Under 30 C.F.R. § 816.49(a)~12), all impoundments that meet the size criteria of 30 C.F.R. § 77.216(a) also must be routinely inspected in accord- ance with the MSHA regulations in 30 C.F.R. § 77.216-3. Those impound- ments that do not meet the criteria of 30 C.F.R. § 77.216(a) must be examined at least quarterly for the appearance of structural weakness and other hazardous conditions. The states also employ qualified persons to inspect impoundments on varying schedules. Table 2.1 lists the monitoring requirements and inspec- tion intervals for various states. The local OSM office, or state delegate
CURRENT REG ULA TOR Y FRAME WORK TABLE 2.1 Impoundment Monitoring Requirements by Selected States 45 State Water Inspection Professional Plan for Emergency Monitonng Frequency Engineer Instrumentation Waming Certification Plans Alabama Yes Two per Each Yes No a month construction phase Illinois Yes Quarterly for At completion Yes Yes non-MSHA or quarterly structures Indiana Yes Quarterly Within 30 Yes Yes days of completion Kentucky Yes As per MSHA Quarterly, Yes No a annually, at cnbcal phase Maryland Yes Quarterly, Annually and Yes No annually, and at critical per MSHA phase Ohio Yes Monthly Quarterly Yes Yes Pennsylvania Yes Weekly Cntcal Yes Yes phases and completion Tennessee b Yes Monthly or Quarterly Yes No a quarterly and annually Virginina Yes Quarterly, Quarterly, No No a critical phase cnbcal and annually phase, and annually West Virginia Yes Daily during Quarterly Yes Yes construction a While these states have no specific requirements, there is an MSHA requirement to create a plan. b Tennessee does not have primacy. OSM oversees monitoring in this state. SOURCE: Charles R. Gillian and Michael R. Wooldridge, Alliance Consulting, personal communication, 2001; Albert G. Morris, Indiana Department of Natural Resources, personal communication, 2001.
46 COAL WASTEIMPOUNDMENTS delegate program having primacy for mining, reclamation, and enforcement activities under OSM purview is responsible for regularly inspecting mines and responding to inquiries. Observations Like the MSHA regulations, the OSM regulations speak almost exclu- sively to the engineering aspects and stability of the embankment. The OSM regulations (30 C.F.R. §§ 816.49 and 816.84) mention no engineering, inspection, or reporting requirements for the impoundment basin area. These sections expressly pertain to structures that either are constructed of, or are built to impound, coal waste. While authority to require investigations of the impoundment basin area may be implied in general OSM regulations, since the basin is part of the impoundment, that authority is not explicit. OTHER FEDERAL LAWS AND STATE DELEGATE PROGRAMS RELEVANT TO REFUSE DISPOSAL PRACTICES Many federal and state laws may be applicable to coal mining activities and the operation of coal refuse disposal facilities. Significant federal laws relating to coal mining include the Clean Air Act (42 U.S.C. §§ 7401, et seq.), the Clean Water Act (33 U.S.C. §§ 1251, et seq.), the Safe Drinking Water Act (42 U.S.C. §§ 300f, et seq.), and the Resource Conservation and Recovery Act (42 U.S.C. §§ 6901, et seq.), where initial administrative and enforcement authority was assigned to the U.S. EPA. EPA may assign primary authority for its programs to the states provided that the states have established legal authority, a responsible agency, and an equivalent or more stringent program than that mandated by federal law and rulemaking. Because state program organization varies from state to state, and because some states opt not to obtain primacy, the following discussion focuses only on the federal requirements that must be carried through in a primary state program. These statutes are also implemented through detailed regulations found primarily in Titles 33 and 40 of the Code of Federal Regulations. Clean Air Act The Clean Air Act may require a coal operator to obtain a permit for particulate emissions released during coal preparation (42 U.S.C. § 7661a;
CURRENT REGULA TOR Y. FRAME WORk: 47 40 C.F.R. Part 60, Subpart Y). This requirement does not apply to refuse impoundments directly, but some states regulate fugitive dust emissions from these impoundments (e.g., Indiana, New Mexico). Certain alternative technologies to conventional refuse impoundment storage systems may require additional air permitting if the technology requires thermal processes such as synfi~els production, fine coal drying, or mine-mouth fluidized-bed combustion. Clean Water Act Section 402 of the Clean Water Act (33 U.S.C. § 1342) establishes the National Pollutant Discharge Elimination System requirements for point- source discharges of pollutants to surface water. All releases of water through discrete conveyances from a coal mining operation must be permitted, monitored, and reported under the National Pollutant Discharge Elimination System program. Under this program, specific effluent limits define the maximum level of contaminants allowed in the discharge. EPA is currently in the process of applying watershed effluent limits based on total maximum daily load for certain contaminants to new and existing National Pollutant Discharge Elimination System permits (33 U.S.C. § 1313 Idle. Regulations for point-source discharges from coal mining are found at 40 C.F.R. Part 434. The Clean Water Act, § 402, also obliges the EPA and its state delegate programs to protect the quality of surface water from sediment and other contaminants Dom nonpoint sources associated with surface runoff (40 C.F.R. § 122.26~. Sedimentation porous are constructed downgradient Tom the coal refuse impoundment to collect surface runoff from the embankment downslope and reduce sediment load before release. Releases from sedimen- tation ponds are subject to the National Pollutant Discharge Elimination System effluent discharge requirements, which contain limits for suspended solids. Section 404 of the Clean Water Act (33 U.S.C. § 1344) authorizes the U.S. Anny Corps of Engineers to permit the discharge of dredged or fill material into waters of the United States, including wetlands. Regulations promulgated by We U.S. Army Corps of Engineers include a definition of "fill" as follows (33 C.F.R. Part 323.2(e)~: any material used for the primary purpose of replacing an aquatic area with dry land or of changing the bottom elevation of an tsic] waterbody. The term does not include any pollutant discharged into the water primarily to dispose of waste, as that activity is regulated under Section 402 of the Clean Water Act.
48 COAL WASTEIMPOUNDMENTS The U.S. Army Corps of Engineers has relied upon permit procedures in 33 C.F.R. Parts 320 and 323 and EPA guidelines at 40 C.F.R. Part 230 in their review of individual permits for valley fill, including coal waste impoundments, resulting from surface mining. The general standard is that: fill material should not be discharged into the aquatic ecosystem, unless it can be demonstrated that such a discharge will not have art unacceptable adverse impact either individually or in combination with known and/or probable impacts of other activities affecting the ecosystem of concern Section 404 permits are usually considered after the design reviews by MSHA and OSM (and their state counterparts) and require public review and comment opportunities. The consideration of a 404 permit by the U.S. Army Corps of Engineers may also require preparation of an Environmental Impact Statement under the National Environmental Policy Act. Because refuse impoundments in the Appalachian coalfields are often constructed in the upper reaches of a stream valley, a Section 404 permit is required for their construction, although whether waste materials can be permitted in a stream, under either a Section 404 or Section 402 permit, remains controversial (as discussed above). The U.S. Army Corps of Engineers does not require an individual permit in all cases. They have adopted a Nationwide Permit Program, which authorizes a general permit designed to regulate with little, if any, delay or paperwork, certain activities having "minimal impacts," including some coal waste impoundments in headwaters (stream tributaries where average annual flow is less the 5 cubic feet per second). If an impoundment qualifies under the Nationwide Permit, the applicants must notify the U.S. Army Corps of Engineers that they qualify and must show authorization by the OSM (or the state delegate program) and submit an approved mitigation plan. The Nationwide Permit contains a general provision for protecting the remaining segments of the stream. Safe Drinking Water Act The Safe Drinking Water Act establishes the Underground Injection Control program to protect underground sources of drinking water from effects associated with the injection of waste into the subsurface (42 U.S.C. §§ 300f, et seq.; 40 C.F.R. Part 144~. The Underground Injection Control program is applicable to coal refuse disposal methods that inject refuse slurry back into underground mine workings. Although no regulations at the =
CURRENT REGULA TOR Y FRAMEWORK 49 federal level require permits, Underground Injection Control programs may require permits at the state level. Resource Conservation and Recovery Act The Resource Conservation and Recovery Act regulates hazardous and nonhazardous solid wastes (42 U.S.C. §§ 6901, et seq.~. Refuse generated by mining and beneficiation processes associated with mineral extraction, including coal, are categorically excluded from the definition of hazardous waste (42 U.S.C. § 6921 (b)~3~(A)(ii); 40 C.F.R. § 261.4(b)~7~. Other solid wastes, such as waste oils and solvents, fall within the definition. Wildlife Protection Acts The U.S. Fish and Wildlife Service is responsible for enforcing the Migratory Bird Treaty Act (16 U.S.C. §§ 703, et seq.), the Endangered Species Act (16 U.S.C. §§ 1531, et seq.), and other wildlife protection legislation. For coal refuse impoundments, the U.S. Fish and Wildlife Service is particularly interested in the influence of refuse disposal on riparian habitats, wetlands, and downstream aquatic communities. SMCRA and other statutes mandate coordination with the U.S. Fish and Wildlife Service in permitting activities that might affect wildlife. The U.S. Fish and Wildlife Service makes recommendations and advises the regulatory agencies on ways to avoid or minimize the effects of impoundments on fish and wildlife. The Endangered Species Act prohibits actions that would harm endangered species; it can be directly enforced by the U.S. Fish and Wildlife Service (16 U.S.C. § 1538~. SUMMARY Standards for impoundments and refuse piles were developed after the Buffalo Creek disaster in February 1972. The Federal Mine Safety and Health Act establishes mandatory standards to protect the health and safety of miners. This limitation is important in assessing MSHA's regulatory responsibility and authority associated with potential impoundment break- throughs and failures that do not affect the health and safety of miners but may affect persons, communities, or ecosystems downstream. On the other hand, the legislative and regulatory direction of SMCRA, to protect society
so COAL WASTEIMPOUNDMEN~ and the environment from the adverse effects of surface coal mining operations, complements the intent of the Federal Mine Safety and Health Act. The material reviewed in this chapter indicates that a substantial regulatory structure covers many aspects of the design, construction, and operation of coal waste impoundments. The committee concludes that while the regulatory review of a proposed impoundment is detailed with respect to the embankment, the regulatory review of the impoundment basin has been less rigorous. The authority for review of the basin characterization and design appears to be covered only in general language authorizing investigation of all relevant issues with respect to the impoundment. The committee recommends that MSHA and OSM should have clear authority to review basin design. It is not evident to the committee whether specific legislation to authorize more detailed examination of basin issues is required, or whether these issues can be handled by additional n~lemaking under existing authority. The committee heard reports that the review process is undesirably lengthy, commonly exceeding 2 years. In addition, it appears that review times have lengthened considerably in recent years. The committee concludes that timely review is an essential component of an elective regulatory process. An efficient and coordinated regulatory review process can be of substantial benefit to both the applicant and He jurisdictional agencies. A well-coordinated technical review process can ensure that the health and safety of both the miners and the public, and the protection of the environment are ensured in a sensible and streamlined way. Therefore, the committee recommends that the review process for both new permits and revisions to existing permits be overhauled to include the following elements: A formal joint process that would coordinate the currently fragmented and inefficient collection of reviews into a single process. Sufficient staff for engineering and other reviews in the agencies that participate in the joint process so that the time required to complete the review can be reduced significantly.