OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

Research conducted by: Todd Leatherman

Page 1 of 2

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

INQUIRY: 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 RESULTS: 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 
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

Research conducted by: Todd Leatherman

Page 2 of 2

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. 

ATTACHMENTS

48 FR 43994 (SEPTEMBER 26, 1983)