COALEX REPORT 79

	Coalex Report 79

This is the Office of Surface Mining's library of COALEX Research Reports. COALEX is a database of mining and reclamation information, including the Surface Mining Law and regulations, maintained in LEXIS-NEXIS -- a commercial, on-line research service. These reports have been compiled under a cooperative agreement between the Office of Surface Mining and the Interstate Mining Compact Commission, which represents most U.S. coal producing states. The following report includes an analysis of a specific issue requested by a state regulatory authority with responsibility for carrying out the Surface Mining Law. Copies of the research reports and attachments are available to the public, upon request. For additional information, or to obtain copies of the listed attachments, contact Ron Tarquinio by phone at (202) 208-2882 or by e-mail at rtarquin@osmre.gov.

                   
COALEX STATE INQUIRY REPORT - 79
April 10, 1987

Ann Laubach
Division of Reclamation
Department of Natural Resources
Fountain Square, B-3
Columbus, Ohio 43224

TOPIC: OVERLAPPING MSHA/SMCRA IMPOUNDMENTS

SEARCH REQUEST:   Search the Federal Register to determine if State regulatory authorities are
required to issue NOVs for violations of performance standards relating to impoundments which
are also required to be inspected by MSHA, if an MSHA inspector has already issued an NOV for
the same defect.

SEARCH RESULT: 30 CFR Sec. 816.49 (a) (1) reads:
"Impoundments meeting the criteria of Sec. 77.216(a) of this title shall comply with the
requirements of Sec. 77.216 of this title and this section.  The plan required to be submitted to
the District Manager of MSHA under Sec. 77.216 of this title shall also be submitted to the
regulatory authority as part of the permit application." 

   Under this regulation, certain impoundments are required to meet the specifications of two
regulatory agencies - MSHA and OSM.  Thus, there arises a question as to whether both agencies
are required to inspect these impoundments, and, if a violation is found, whether both agencies
are required to cite the operator for noncompliance.

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

   A search of the Federal Register revealed a final ruling published September 26, 1983
addressing in part the relationship between OSM and MSHA with respect to regulation of
impoundments.  On June 21, 1982 OSM proposed to allocate to MSHA, primary responsibility for
impoundment design review and emergency action.  One of the reasons for the proposed rule
was the desire to avoid duplicative reviews of impoundment plans by MSHA and OSM and
duplicative enforcement and emergency notification.

   The comments received by OSM about the proposed rule varied.  Some of the commenters in
favor of the proposed rule liked it because it would eliminate existing duplication of regulatory
control. Others felt that MSHA should be the  lead agency" in dam approvals, while still others
noted that MSHA implementation of emergency provisions would clarify MSHA's responsibility.

   Among the commenters opposing the proposed rule were some State regulatory authorities
who felt that the rules gave authority to MSHA which should be delegated to the States. Some
State authorities were also concerned that their authority would be preempted unless the
language of the proposed rule was amended. Other critics of the proposed rule were those who
felt that OSM was improperly relinquishing the approval or enforcement authority of the States to
another federal agency.

   The proposed rule was not adopted. As stated by OSM:

"The final rule retains independent regulatory authority responsible under section 515, 506, 507,
508 and 510 of the Act for permitting and ensuring operator compliance with the performance
standards found in section 515(b)(8) of the Act and with Pub. L. 83-566."

   In declaring the relationship of OSM and MSHA in the approval process, OSM stated:

"Under the final rule, MSHA's approval of the design and construction of impoundments subject to
the Act will not satisfy the requirement for approval by the regulatory authority. Thus, under final
Sec. 816.49 and the permitting rules, the regulatory authority must review and approve plans for
impoundments to ensure that the structures are designed to be in compliance with appropriate
standards. Final Sec. 816.49(a) requires that plans for the construction of large impoundments
must be submitted both to MSHA and the regulatory authority. The regulatory authority may
consider MSHA's action on plans for impoundments, but is independently charged to make its own
findings with regard to plan approval."

   As to the relationship of OSM and MSHA in the enforcement process, one commenter stated
that the regulatory authorities should not have the responsibility for monitoring and enforcing
compliance with provisions of 30 CFR Part 77 for those impoundments which meet the criteria of
30 CFR Sec. 77.216 (MSHA criteria). In response to this commend, OSM stated:

"OSM has not adopted proposed Sec. 816.49(b)(1)(iii) which would have required the regulatory
authority to regulate for compliance with MSHA requirements.  Under these final rules, the
regulatory authority is responsible for assuring compliance with requirements imposed under the
Act.  However, to the extent that MSHA's rules are referenced, they will be enforced under the
Act." 


ATTACHMENT
48 FR 43994 (SEPTEMBER 26, 1983)


Search conducted by: Todd Leatherman

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