[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]


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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