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OCR for page 35
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
OCR for page 36
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.
=
OCR for page 37
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
OCR for page 38
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
OCR for page 39
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
OCR for page 40
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
OCR for page 41
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
OCR for page 42
~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
=
OCR for page 43
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.
OCR for page 44
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
OCR for page 45
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.
OCR for page 46
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;
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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.
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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
=
OCR for page 49
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
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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.
Representative terms from entire chapter:
water act
