[Federal Register Volume 75, Number 156 (Friday, August 13, 2010)]
[Proposed Rules]
[Pages 49429-49432]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-19960]


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DEPARTMENT OF LABOR

Mine Safety and Health Administration

30 CFR Parts 56 and 57

RIN 1219-AB70


Metal and Nonmetal Dams

AGENCY: Mine Safety and Health Administration, Labor.

ACTION: Advance Notice of Proposed Rulemaking (ANPRM).

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SUMMARY: Dam failures at metal and nonmetal mines have exposed miners 
to life-threatening hazards. The Mine Safety and Health Administration 
(MSHA) is reviewing its existing metal and nonmetal standards for dams. 
The Agency is concerned that some dams pose hazards because they are 
not designed, constructed, operated, and maintained to accepted dam 
safety practices. MSHA is considering approaches to better protect 
miners from the hazards of dam failures and is soliciting information 
to help determine how best to proceed.

DATES: Comments must be received by midnight Eastern Daylight Saving 
Time on October 12, 2010.

ADDRESSES: Comments must be identified with ``RIN 1219-AB70'' and may 
be sent to MSHA by any of the following methods:
    (1) Federal E-Rulemaking Portal: http://www.regulations.gov. Follow 
the on-line instructions for submitting comments.
    (2) Electronic mail: [email protected]. Include ``RIN 1219-
AB70'' in the subject line of the message.
    (3) Facsimile: 202-693-9441. Include ``RIN 1219-AB70'' in the 
subject line of the message.

[[Page 49430]]

    (4) Regular Mail: MSHA, Office of Standards, Regulations, and 
Variances, 1100 Wilson Boulevard, Room 2350, Arlington, Virginia 22209-
3939.
    (5) Hand Delivery or Courier: MSHA, Office of Standards, 
Regulations, and Variances, 1100 Wilson Boulevard, Room 2350, 
Arlington, Virginia. Sign in at the receptionist's desk on the 21st 
floor.
    MSHA will post all comments on the Internet without change, 
including any personal information provided. Comments can be accessed 
electronically at http://www.msha.gov under the ``Rules and Regs'' 
link. Comments may also be reviewed in person at the Office of 
Standards, Regulations, and Variances, 1100 Wilson Boulevard, Room 
2350, Arlington, Virginia. Sign in at the receptionist's desk on the 
21st floor.
    MSHA maintains a list that enables subscribers to receive e-mail 
notification when the Agency publishes rulemaking documents in the 
Federal Register. To subscribe, go to http://www.msha.gov/subscriptions/subscribe.aspx.

FOR FURTHER INFORMATION CONTACT: Patricia W. Silvey, Director, Office 
of Standards, Regulations, and Variances, MSHA, at 
[email protected] (E-mail), 202-693-9440 (Voice), or 202-693-9441 
(Fax).

SUPPLEMENTARY INFORMATION: 

I. Background

    MSHA's database contains information on nearly 2000 dams at metal 
and nonmetal mines. Mine operators have constructed these structures 
for various purposes, such as disposing of tailings or mine waste, 
processing minerals, treating or supplying water, and controlling run-
off and sediment. Although many of these dams are designed, 
constructed, operated, and maintained according to accepted dam safety 
practices, others are not and dam failures and near failures continue 
to occur.
    Since 1990 to the present, MSHA investigated dam failures at metal 
and nonmetal mines in virtually every region of the country and at 
small and large operations. Failures or near failures have occurred at 
copper, phosphate, sand and gravel, trona, gypsum, and limestone mines, 
among others.
    Failures have damaged property and equipment, but no deaths or 
serious injuries have occurred. Examples of dam failures include:
     A 1990 failure of a 100-foot high dam at a limestone mine 
in Puerto Rico released over 10 million gallons of water and tailings. 
The failure flooded eight lanes of a major highway, depositing tailings 
up to eight feet thick. The dam failed about 2 a.m. when no miners were 
present. The mine operator did not use an engineer to design the dam; 
several design and construction deficiencies, such as poor compaction, 
steep slopes, and absence of internal drains, contributed to the 
failure.
     A 70-foot high tailings dam failed at an andesite quarry 
in Wisconsin in 1992, tearing apart a railroad track and leveling a 
power line at the mine. The dam failed at 3 a.m. when no miners were 
present. The dam was not designed by an engineer. After a slope failure 
in 1987, the mine operator installed instruments in the dam to monitor 
internal water pressures. Pressures beyond a certain level would lead 
to structural instability. In the 18 months before the 1992 failure, 
however, the operator checked the instruments only twice. A combination 
of steep slopes and high internal water pressure contributed to the 
failure.
     In 1997, a dam at an Arizona copper mine released tailings 
for over a half mile downstream and to depths of 30 feet. Four miners, 
one in a haul truck, one in a bulldozer, and two in a pickup truck, 
were carried down-slope with the slide. One miner injured his back 
running from the pickup but the others were not injured. The dam was 
designed by an engineer; however, the mine operator's rate of placement 
of waste rock on top of the tailings created pressures that contributed 
to the failure.
     In August 2002, a 450-foot section of dam failed at a sand 
and gravel mine in Georgia, sending a wave of water and tailings 
through the shop area. The 30-foot high dam failed shortly after 8 p.m. 
The wave of water and tailings moved a scraper, backhoe and front-end 
loader, which were parked in the area. Three miners, near the shop, saw 
the dam failing and escaped in a pickup truck. The dam, built without 
being designed by an engineer, had a weak foundation, among other 
deficiencies.
     In 2004, a dam failure at a sand and gravel mine in 
California released over 200 million gallons of water and tailings, 
inundating a hydraulic excavator in an adjacent pit. The failure 
occurred shortly after 6 p.m., at the start of the maintenance shift. 
About 15 minutes before the failure, the excavator operator had gone 
home and a bulldozer operator had parked his machine on the top of the 
dam. A miner who lubricated the equipment was driving into the pit when 
he noticed the rising water, halted his truck, and backed up the access 
road. The dam was not properly designed. The investigation revealed 
that the design of the dam failed to include an evaluation of the 
foundation and embankment material strengths, and stability analyses to 
verify that the slopes of the dam would have adequate factors of 
safety.
    MSHA investigators have found that design, construction, operation, 
or maintenance deficiencies have contributed to failures of dams at 
metal and nonmetal mines and exposed miners to hazards.
    Since the early 1970's, Congress has enacted laws to create a 
national program to reduce the risks of dam failures. The Federal 
Emergency Management Agency (FEMA) is charged with administering the 
national dam safety program and has issued a series of Federal 
Guidelines for Dam Safety (Guidelines) (http://www.fema.gov/library/viewRecord.do?id=1578).
    The Guidelines address, among other things, practices and 
procedures for the design, construction, operation, and maintenance of 
all types of dams. In the Guidelines, FEMA recommends that dams:
     Be designed by a competent engineer;
     Be constructed under the general supervision of a 
competent engineer knowledgeable about dam construction;
     Be inspected and monitored at frequent intervals by a 
person trained to recognize unusual conditions; be inspected by a 
competent engineer with knowledge of dam safety at a frequency 
consistent with the dam's hazard potential; and
     Have an emergency action plan, if dams are classified as 
having high or significant hazard potential in the event of failure.
    Every two years, MSHA reports on the status of its dam safety 
program to FEMA, which then sends Congress an evaluation of each 
Federal agency's program and how it complies with the Guidelines. FEMA 
has recommended, in biennial reports to Congress and in meetings of the 
Interagency Committee on Dam Safety, that MSHA promulgate standards to 
encompass all aspects of design, construction, and inspection for dams 
at metal and nonmetal mines.
    The existing requirements for dams at metal and nonmetal mines, 30 
CFR 56.20010 and 57.20010, are derived from the Metal and Nonmetallic 
Mine Safety Act of 1966. The standards state: ``If failure of a water 
or silt retaining dam will create a hazard, it shall be of substantial 
construction and inspected at regular intervals.'' The standards 
promulgated for coal mines under the Federal Coal Mine Health and 
Safety Act of 1969 were similar, but specified that the mine operator 
inspect the dams

[[Page 49431]]

at least once per week and record inspection findings.
    The requirements for coal mines were revised in 1975 after the 
Buffalo Creek dam failure. For dams which can present a hazard or are 
of a certain size, the existing standards require a coal mine operator 
to:
     Have a registered professional engineer certify the dam's 
design;
     Develop plans for the design, construction, maintenance, 
and abandonment of the dam and have the plans approved by MSHA;
     Have a qualified person inspect the dam weekly;
     Have instrumentation monitored weekly;
     Correct any hazardous conditions and make required 
notifications; and
     Submit an annual report with a registered, professional 
engineer's certification that construction, operation, and maintenance 
of the dam have been in accordance with approved plans.

II. Key Issues on Which Comment Is Requested

    MSHA is asking interested parties to comment on measures to assure 
that mine operators design, construct, operate and maintain dams to 
protect miners against the hazards of a dam failure.
    MSHA seeks comments on the questions below. If a commenter refers 
to a particular dam as an example, please identify the mine, or provide 
the number of miners and the mine's commodity. Also, include the dam's 
storage capacity, height, and hazard potential and characterize its 
complexity. Provide enough detail with the comments that the Agency can 
understand the issues raised and give them the fullest consideration. 
Comments should include alternatives, rationales, benefits to miners, 
technological and economic feasibility, impact on small mines, and 
supporting data. Please include any information that supports your 
conclusions and recommendations: Experiences, data, analyses, studies 
and articles, and standard professional practices.

General Questions

    1. MSHA is seeking information concerning current dam safety 
practices at metal and nonmetal mines. What measures do mine operators 
currently take to design, construct, operate, and maintain safe and 
effective dams? What measures do mine operators currently take to 
safely abandon their dams? For mine operators with dams, please provide 
your experiences.
    2. MSHA is required to inspect every mine in its entirety, which 
includes dams of all sizes and hazard potential. A common approach for 
dam safety is to have tiered requirements based on a dam's size and 
hazard potential. How should MSHA determine safety requirements based 
on a dam's size and hazard potential? Please include specific 
recommendations and explain your reasoning.
    3. What non-Federal authority regulates the safety of dams at metal 
and nonmetal mines in your state, territory, or local jurisdiction? 
Please discuss the specific requirements, including the principles that 
they address. If possible, please provide information about relevant 
non-federal dam safety requirements through a hyperlink or other means.
    4. What records should be kept of activities related to the safety 
of dams? Please be specific and include your rationale. What records 
should be provided to miners if hazardous conditions are found?

Design and Construction of Dams

    MSHA's existing standards do not include specific requirements for 
design of dams. MSHA found that inadequate design contributed to some 
of the metal and nonmetal dam failures. In responding to the following 
questions, please discuss how any requirements should vary according to 
the size or hazard potential of a dam, and why.
    5. How should mine operators assure that dams are safely and 
effectively designed? Please suggest requirements that MSHA should 
consider for safe design of dams. Please be specific and include your 
rationale.
    6. Please suggest requirements for review of dam designs by mine 
operators and MSHA and include your rationale for specific 
recommendations and alternatives.
    7. With new standards, operators may need to evaluate and upgrade 
existing dams. Please elaborate on how the safety of existing dams 
should be addressed.
    8. MSHA's existing standards for dams at metal and nonmetal mines 
do not address whether a dam is constructed as designed. What measures 
are necessary to ensure that mine operators construct dams as designed?
    9. How should MSHA verify that dams have been constructed as 
designed? Please explain your rationale.

Operation and Maintenance of Dams

    MSHA's existing standards do not contain specific requirements 
addressing the operation and maintenance of dams.
    10. What should a mine operator do to operate and maintain a safe 
dam? How should MSHA verify that dams are safely operated and 
maintained? Please be specific.
    MSHA's existing standards require dams to be inspected at regular 
intervals if failure would create a hazard. Inspections can identify 
hazardous conditions, allowing a mine operator to take corrective 
action to prevent a failure. The Agency will be referring to two types 
of inspections in this document, ``routine'' and ``detailed.'' Mine 
operators should perform frequent, routine dam inspections, which may 
include monitoring instrumentation, to identify unusual conditions and 
signs of instability. Personnel with more specialized knowledge of dam 
safety should conduct detailed inspections to identify less obvious 
problems and evaluate the safety of the dam. Detailed inspections, 
occurring less often, would include an examination of the dam and a 
review of the routine inspections and monitoring data. The Guidelines 
recommend that inspection personnel be qualified for their level of 
responsibility and trained in inspection procedures.
    11. What measures should mine operators take to assure that dams 
are adequately inspected for unusual conditions and signs of 
instability?
    12. How often are routine inspections of dams conducted? How often 
should they be conducted? What determines the frequency? Who conducts 
the routine inspections? Please be specific and include your rationale.
    13. Instruments, such as weirs, provide information on the 
performance of a dam. How frequently should mine operators monitor dam 
instrumentation? Please provide your rationale.
    14. What information should be documented during routine dam 
inspections? Please provide your rationale.
    15. Does a competent engineer inspect your mine's dam? If so, at 
what frequency? Please explain the rationale for these inspections and 
what is evaluated.
    16. How often should detailed inspections be conducted? Please 
include your rationale.
    17. What information and findings should be documented during 
detailed dam inspections? Please be specific and include your 
rationale.
    18. How should MSHA verify that mine operators conduct routine and 
detailed inspections? Please explain how your suggestion would work.

[[Page 49432]]

Qualifications of Personnel

    A mine operator is responsible for the design, construction, 
operation, and maintenance of dams. For an effective dam safety 
program, an operator must use personnel who are knowledgeable about dam 
safety.
    19. What qualifications do mine operators currently require of 
persons who design, inspect, operate, and manage dams? In what 
capacities are engineers used? Please be specific in your response.
    20. The Guidelines recommend that dams be designed by competent 
engineers. What specific qualifications or credentials should persons 
who design dams possess? Please include your rationale.
    21. The Guidelines recommend that a dam be constructed under the 
general supervision of a competent engineer knowledgeable about dam 
construction. What specific qualifications or credentials should a 
person have who verifies that a dam is being constructed as designed? 
Please provide your rationale.
    22. What training should personnel receive who perform frequent, 
routine inspections and who monitor instrumentation at dams? In your 
response, please suggest course content and the frequency of the 
training, including the rationale for your recommendations.
    23. What qualifications or credentials should be required of 
persons who perform detailed inspections to evaluate the safety of a 
dam? Please be specific and include your rationale.

Abandonment of Dams

    24. Some regulatory authorities require that dam owners obtain 
approval of a plan to cap, breach, or otherwise safely abandon dams. 
What actions should mine operators take to safely abandon dams? Please 
include specific suggestions and rationale.
    25. How can MSHA verify that a mine operator has safely abandoned a 
dam?

Economic Impact

    MSHA seeks information to assist the Agency in deriving the costs 
and benefits of any regulatory changes for dams at metal and nonmetal 
mines. In answering the following questions, please indicate the dam's 
storage capacity, height, and hazard potential and characterize the 
complexity of each dam referenced. Also, please include the state where 
each dam is located, and the number of employees at the mine.
    26. What are the costs of designing a new dam? Please provide 
details such as hours, rates of pay, job titles, and any contractual 
services necessary. How often is the design of an existing dam changed? 
What are the costs of a redesign?
    27. What are the costs of constructing a dam? Please provide 
details based on: Size of dam; labor costs, including hours, rates of 
pay, job titles; costs of equipment and materials; and any contractual 
services necessary.
    28. Please describe the oversight you provide during dam 
construction to assure it complies with the design plan. How much does 
it cost per year per dam for oversight and quality control? What 
special knowledge, qualifications, or credentials do you require of 
those who provide oversight?
    29. How often do you add height to an existing dam or modify it in 
some other way? Who supervises the design and construction of these 
modifications, for example, a professional engineer, competent 
engineer, contractor, etc? Please be specific and provide rationale for 
your answer. How much does it cost? Please provide details such as 
labor costs, including hours, rates of pay, job titles, and costs of 
equipment and materials and any contractual services necessary.
    30. How much does it cost per year per dam for routine inspections? 
If you incur separate costs for monitoring instrumentation, how much is 
that cost? How often do you have a detailed inspection conducted? How 
much does it cost per year for these inspections?
    31. Does the state or local jurisdiction in which you operate 
require you to use a professional engineer? If so, when is a 
professional engineer specifically required? (If you have dams in more 
than one state please identify which states require a professional 
engineer and which do not).
    32. What are the costs associated with training personnel who 
conduct frequent, routine inspections and monitor instrumentation at 
dams?
    33. What costs are involved in capping, breaching, or otherwise 
properly abandoning a dam? Please provide details of your experience 
and what was involved when you properly abandoned a dam. Describe any 
impact of a properly abandoned dam.
    34. What are the costs to a mine operator if a dam fails? Please 
characterize other impacts such as loss of life, environmental damage, 
etc.
    35. Do you have insurance against a dam failure? If so, please 
specify cost and coverage. Does the insurance carrier require the use 
of a professional engineer for specific dam activities? If a 
professional engineer is not required, does the insurance carrier give 
a discount if one is used? Does your insurance company have any other 
requirements related to dam safety?
    36. What quantifiable and non-quantifiable costs and benefits for 
the downstream community are involved when a dam is properly designed 
and constructed? In addition, MSHA welcomes comments on other relevant 
indirect costs and benefits.

    Dated: August 9, 2010.
Joseph A. Main,
Assistant Secretary of Labor for Mine Safety and Health.
[FR Doc. 2010-19960 Filed 8-12-10; 8:45 am]
BILLING CODE 4510-43-P