FEDERAL REGISTER: 48 FR 44006 (September 26, 1983)

DEPARTMENT OF THE INTERIOR

AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM)

30 CFR Parts 701, 816, and 817

Surface Coal Mining and Reclamation Operations; Permanent Regulatory Program; Coal Mine Waste

ACTION: Final rule. 

SUMMARY: The Office of Surface Mining Reclamation and Enforcement (OSM) has revised the rules on disposal of 

coal mine waste from surface and underground mining activities. The revised rules allow qualified registered professional 

engineers to design coal refuse disposal sites for site specific conditions and reduce duplication and conflicts between 

these rules and the requirements of the Mine Safety and Health Administration (MSHA). These revised rules also include 

requirements for disposal of noncoal waste at surface mining operations. 

EFFECTIVE DATE: October 26, 1983. 

FOR FURTHER INFORMATION CONTACT: C. Y. Chen, Division of Engineering Analysis, Office of Surface Mining, 

U.S. Department of the Interior, 1951 Constitution Avenue, NW., Washington, D.C. 20240, 202-343-2160. 

SUPPLEMENTARY INFORMATION: 

I. Background 

II. Discussion of Comments and Rules Adopted 

III. Procedural Matters 

 

I. BACKGROUND 

 On June 18, 1982 (47 FR 26598) OSM published a notice of proposed rulemaking to amend 30 CFR Parts 701, 816 

and 817 relating to coal mine waste definitions and the disposal of coal mine waste from surface and underground coal 

mining activities. The proposed rules were issued to remove specific design criteria and to reduce duplication with the 

Mine Safety and Health Administration (MSHA) rules for coal mine refuse piles and water, sediment, or slurry 

impoundments and impounding structures. These final rules cover the performance standards for the disposal of coal 

mine waste in nonimpounding structures, impounding structures and other situations affecting the handling of coal mine 

waste. Also, one section sets the requirements for the disposal of noncoal mine waste. 

 The public hearing on the proposed rules scheduled for August 5, 1982, was not held since no one requested to speak 

at the hearing. Also, there were no requests to hold public meetings on the proposed rules. 

 When the rules were proposed on June 18, 1982, it was announced that the public comment period would remain 

open until further notice (47 FR 26598). A subsequent Federal Register notice (July 13, 1982, 47 FR 30266) announced 

that the public comment period would close at 5:00 p.m., August 25, 1982, to coincide with the closing of the public 

comment period on the draft supplemental Environmental Impact Statement on the proposed rules. In response to a 

request of the House Committee on Interior and Insular Affairs the public comment period was reopened on September 

7, 1982, and closed again on September 10, 1982. 

 The Surface Mining Control and Reclamation Act of 1977 (Act), 30 U.S.C. 1201 et seq., recognizes the threat posed 

by improper disposal of coal mine waste. Congress included in the Act several provisions concerning coal processing 

waste and underground development waste. 

 For the surface disposal of wastes in areas other than mine workings or excavations, section 515(b)(11) of the Act 

provides that waste piles are to be stabilized in designated areas through compaction. The final contour of waste piles 

must also be compatible with the natural surroundings and the site must be revegetated according to the provisions of the 

Act. Sections 515(b)(13) and 515(f) of the Act provide that all existing and new coal mine waste piles used as dams or 

embankments must be regulated in accordance with standards and criteria concurred in by the Corps of Engineers. 

Section 515(b)(8) requires that impoundments of water achieve stability compatible with that of structures constructed 
under Public Law 83-566 (16 U.S.C. 1006). In addition, section 515(b)(14) of the Act requires specific treatment or 

burial for all debris, acid-forming materials, toxic materials, or materials constituting a fire hazard. The Secretary also 

derives authority to regulate dams impounding waste from the requirements of section 515(b)(10) of the Act to protect 

the hydrologic balance. 

 The authority of the Chief of Engineers in assisting the Secretary to regulate new and existing coal waste piles as dams 

and embankments is contained in section 515(f) of the Act. The standards and criteria used by OSM must conform to the 

standards and criteria used by the Corps of Engineers to ensure that flood control structures are safe and effectively 

perform their intended function. 

 There are three sections to the Act that address coal mine waste produced from underground coal mining operations. 

First, section 516(b)(3) regulates the return of mine and processing waste and tailings to the mine workings or 

excavations. Second, section 516(b)(4) covers the surface disposal of wastes in the same manner as section 515(b)(11). 

Third, section 516(b)(5) covers all new and existing coal mine waste piles in a manner similar to section 515(b)(13), with

the same responsibilities for the Corps of Engineers. 

 To implement these requirements of the Act, permanent program regulations were promulgated on March 13, 1979 

(43 FR 14901). These rules, in 30 CFR 816.81 through 816.93, covered all types of coal processing waste, coal mine 

waste and solid waste generated during surface coal mining activities. Identical rules were included in 30 CFR 

817.81-817.93 for the surface effects of underground mining activities. A plan for the disposal of coal processing waste, 

whether to be placed in a waste bank, dam or embankment, was required to be submitted and approved by the regulatory 

authority under 30 CFR 780.25 for surface mining activities and 30 CFR 784.16 for underground mining activities. 

 Since the promulgation of the permanent program rules on coal mine waste in March 1979, there has been one 

addition to the coal waste rules. On November 20, 1980 (45 FR 76932), Sections 816.83(a) and 817.83(a) were revised 

to provide an exception from the subdrainage requirement for a coal processing waste bank if the operator could 

demonstrate to the regulatory authority that a subdrainage system is not required to ensure structural integrity and water 

quality. The change was promulgated as a result of litigation challenging the requirement, In re: Permanent Surface 

Mining Regulation Litigation, No. 79-1144, D.D.C. (filed 1979). Before the court ruled on the issue, OSM concluded 

that a subdrainage system may not be necessary in all cases as long as the operator is responsible for assuring the 

structural integrity of the coal waste bank. 

 Review of the previous rules under Executive Order 12291 revealed duplication and conflict between those rules and 

the Mine Safety and Health Administration (MSHA) rules for coal mine refuse piles and water, sediment, or slurry 

impoundments and impounding structures. On June 18, 1982 (47 FR 26598), changes were proposed to the OSM rules 

to reduce this duplication by cross-referencing MSHA's rules, where applicable, and revising the previous OSM 

requirements. 

 Under the proposed rules, the disposal of coal mine waste in nonimpounding structures was governed by Sections

816.81 through 816.85. Proposed Section 816.86 was a combination of previous Sections 816.91, 816.92 and 816.93 

and covered impounding structures -- dams and embankments constructed of coal mine waste and impounding water, 

slurry, sediment, etc. Proposed Section 816.87 governed removal of burned or unburned coal mine waste from a disposal 

area and included, from previous Section 816.86, standards for extinguishing a coal mine waste fire. Proposed Section

816.88 governed the return of coal mine waste to underground workings and proposed Section 816.89 set requirements 

for disposal of noncoal wastes. The same changes were proposed for Part 817 covering the disposal of coal mine waste 

from underground coal mining activities. 

 The final rules generally adopt the provisions of the proposed rules in Sections 816.81-816.89 that prescribe the 

performance standards for the disposal of coal mine waste from surface mining activities. However, the requirements in 

the final rules have been reorganized to more closely parallel similar requirements for disposal of excess spoil, editorial 

revisions have been made to clarify the requirements, and some changes have been made in response to comments 

received on the proposed rule. 

 In order to simplify the preamble, the following discussion of the rules in Sections 816.81-816.89 also applies to 

Sections 817.81-817.89, unless otherwise noted. The only difference to be noted is that surface mining activity rules refer 

to Part 780 -- Surface Mining Permit Applications and underground mining activity rules refer to Part 784 --
Underground Mining Permit Applications. For additional discussion, see the preamble to the proposed rules published 

June 18, 1982 (47 FR 26598). 

 

II. DISCUSSION OF COMMENTS AND RULES ADOPTED 

 

A. GENERAL COMMENTS 

 During the comment period, OSM received about 200 individual written comments on the proposed coal mine waste 

rules from 30 sources representing State agencies, private individuals, environmental groups, industry and mining 

associations. All of the relevant comments received during the public comment period have been considered in the 

development of this final rule. Major comments are summarized below. There were several general comments that did 

not address specific sections of the rules which will be covered before discussing specific comments on the proposed 

rules. 

 

NPDES PERMITS 

 One commenter pointed out the possible application of the National Pollution Discharge Elimination System (NPDES) 

to mine waste areas. The commenter indicated that NPDES would probably apply to an impounding structure with a 

discharge point and consequently, the possibility of conflict between OSM and EPA over the responsibility for the coal 

mine waste discharge from the structure. The commenter recommended a memorandum of understanding between OSM 

and EPA to reduce redundant enforcement which would reduce the conflict between agencies, reduce the operational 

costs, and increase the coordination between them. 

 If the mine waste impoundment issues a discharge from a point source, an NPDES permit is required before the waste 

area can be constructed. OSM recently published a final regulation adopting EPA's effluent limitations, by cross reference 

to 40 CFR Part 434, in an effort to eliminate any conflict between applicable OSM and EPA standards. (47 FR 47216,

October 22, 1982). Elimination of duplication between the permitting requirements of the Act and NPDES permitting 

requirements is beyond the scope of this rulemaking. OSM will, however, continue to work to promote cooperation and 

elimination of duplication between the agencies involved. 

 

EXTENSION OF THE COMMENT PERIOD 

 One commenter recommended that when options are presented in a proposal a comment period be opened following 

selection of an option for review and comment on the selection. 

 Both options for the proposed coal mine waste rule were open for comment from June 18, 1982, through September 

10, 1982. An adequate time span was allotted for review of the options for the coal waste rules. For this rule, proposed 

Option 2 was primarily a reiteration of proposed Option 1 with the deletion of two paragraphs for Section 816.86 

concerning coal mine waste impounding structures, and both proposed options were easily understood. Thus, no 

additional comment period is necessary. 

 One commenter contended that it was difficult for citizens to be involved in the rulemaking process because the draft 

supplemental environmental impact statement (EIS) could only be reviewed in the Administrative Record Room in 

Washington, D.C. 

 The commenter was incorrect. The draft supplemental environmental impact statement was available for review in the 

OSM Technical Centers and Field offices. Also the notice on the availability of the EIS provided the name of a person to 

contact for further information and to receive a copy of the draft environmental statement by mail. Copies of the 

cumulative environmental assessment which was issued prior to the draft EIS were also available upon request to 

interested persons. 

 

AVAILABILITY OF REFERENCE MATERIALS 

 One commenter complained that the reference material cited in the proposed rulemaking notice was available only in 

the Washington, D.C., area and that many of the libraries available to the public do not have the publications listed as 

references. Therefore, the commenter complained that it was difficult for the public to review the specific references. 
 Each reference was available in OSM's administrative record and the citation lists the source from which a particular 

publication of interest may be obtained. An individual may obtain copies of any of the listed documents from these 

sources. In addition, the phone number and mailing address of a responsible official was given on the first page of the 

notice of proposed rulemaking for the convenience of persons interested in receiving information on how to obtain copies 

of the references. Thus, adequate access to references was provided. 

 The same commenter was also concerned that no foreign publications were listed as references. In addition the 

commenter believes there were inadequate specific data on coal waste because there were only two documents related to 

coal refuse. 

 The commenter is mistaken. While only two documents in the coal waste reference list included the words "coal 

refuse" in the title, the others are engineering references that list techniques and approaches applicable to the construction 

of coal waste piles. Additionally, it is not necessary to conduct a worldwide search of available information or to include 

an exhaustive bibliography of all possible references. The commenter failed to cite any omitted references, either 

domestic or foreign, that should be considered in addition to those cited. 

 

DESIGN FLEXIBILITY 

 One commenter took issue with the elimination of design standards to afford qualified professional engineers flexibility 

to design coal mine waste structures. In the commenter's estimation, elimination of design standards should prompt a 

corresponding increase in the amount of permit application information so that the regulatory authority would be able to 

determine the adequacy of the design. 

 Design flexibility to meet needs of individual mine site conditions is inherent in the use of performance standards 

rather than extensive use of design criteria. Under OSM's permitting rules, regulatory authorities will have sufficient 

information to determine the adequacy of the design. However, the revised rules retain some design criteria were deemed 

appropriate to ensure the stability of the disposal site and to ensure public safety. In general, under these rules permit 

review of a specific design certified by the design engineer followed by inspection during construction to assure 

adherence to the design approved by the regulatory authority will help ensure compliance with the performance standards 

and protection of the public health and safety. 

 One commenter contended that loss of information input to the permit review process reduces agency capability to 

develop informed judgment on the merits of the reclamation plan. This commenter failed to point out specific areas of 

information loss considered necessary in the permit requirements. Parts 780 and 784 contain special informational 

requirements for coal waste disposal. These sections include requirements for submittal of relevant design information. 

 Two commenters favored reduction of design standards in the Federal rules. One pointed to solutions of mining 

reclamation problems tailored to specific site conditions as an advantage while the other advocated retention of the State 

option to develop design criteria to meet specific objectives. Another commenter agreed that rather than mandating 

design criteria, the engineer should have the flexibility to design more efficient and cost-effective coal refuse disposal 

sites. The commenter also cited the advantages of on-site knowledge of the conditions at the mine site and of 

qualifications to ensure the structural and environmental integrity of the mine. 

 The final rules emphasize the use of performance standards rather than design criteria. Under this approach, the 

regulatory authority may develop additional design criteria or other standards that are appropriate to local conditions. 

This issue is further discussed in OSM's "Final Environmental Impact Statement, OSM EIS-1: Supplement." 

 

CORPS OF ENGINEERS CONCURRENCE 

 Two commenters stated that coal mine waste rules must be developed with the active involvement of the Chief of 

Engineers of the Corps of Engineers. Section 515(f) of the Act requires the Chief of Engineers to concur in writing in the 

Secretary of Interior's standards and criteria. OSM has consulted with the Corps of Engineers in the development of 

these rules and has obtained the necessary concurrence. Sections 201 and 501 of the Act impose on the Secretary of the 

Interior the responsibility of developing regulations covering the permanent regulatory program. These rules are issued in 

accordance with that responsibility. 
 

USE OF MSHA STANDARDS 

 Two organizations submitted lengthy comments questioning the reliance on the MSHA rules in OSM's proposed coal 

mine waste rules. The assertion of the commenters was that OSM must establish coal mine waste rules which supplement 

those of MSHA because the Surface Mining Act has as its objective the protection of the health and safety of the public, 

whereas MSHA has a limited mandate of protecting the miner on the mine site. The commenters argued that because of 

the separate regulatory objectives, Congress intended OSM to adopt coal mine waste rules which go beyond MSHA's. 

 The final rules adopted today do supplement the rules adopted by MSHA. Where applicable, however, MSHA 

standards which satisfy requirements under the Surface Mining Act have been adopted by cross-reference. Such 

cross-referenced standards are nevertheless enforceable under the Act by the surface mining regulatory authority and 

become requirements of the surface mining regulatory program as well as MSHA's program for coal mine health and 

safety. 

 It is undesirable to have two regulatory programs for the same subject that contain conflicting standards or which use 

fundamentally different terminology. The final rules help coordinate regulatory responsibilities under the Surface Mining 

Act with those of MSHA. Additionally, they help ensure that OSM's regulations do not supersede, amend, modify or 

repeal any standard under the Federal Coal Mine Health and Safety Act of 1969 (as revised in 1977). 

 The final rule is in accord with the requirements of the Act, clearly identifies areas of overlap between OSM and 

MSHA rules, and, by utilizing similar definitions and cross-referencing, eliminates conflicts between the two sets of rules. 

It should be noted, however, that the final rule does not fully eliminate duplicative regulatory requirements between the 

two programs. Rather, it recognizes areas of continued duplication and applies standards under the surface mining 

regulatory program which are consistent with those applied under the MSHA program for health and safety. 

 

B. SPECIFIC COMMENTS AND DISCUSSION OF RULES ADOPTED 

 

PART 701 -- PERMANENT REGULATORY PROGRAM 

 

SECTION 701.5 - DEFINITIONS. 

 The final rule adopts from the proposal revisions to the previous definition of "coal processing waste" and the three 

new definitions: "coal mine waste," "impounding structure," and "refuse pile." For a more complete explanation of the 

basis of the new definitions, the reader is referred to 47 FR 26600 (June 18, 1982). OSM received several comments on 

the proposed definitions. These comments are discussed below. 

 

COAL PROCESSING WASTE 

 The final rule defines the term "coal processing waste" to mean earth materials which are separated and wasted from 

the product coal during cleaning, concentrating, or other processing or preparation of coal. An editorial change is made 

in the final definition to more closely track the language in the definitions of the terms "coal preparation plant" and 

"surface coal mining operation" in 30 CFR 701.5 and 700.5, respectively. Three commenters agreed with the proposed 

definition of coal processing waste. 

 Another commenter suggested the beginning of the definition read as follows: "Coal processing waste includes toxicor acid-forming earth materials which are . . ." The commenter said this change would reflect the reason for coal 

processing waste being disposed of separately from spoil. The commenter indicated that the proposed definition seemed 

vague in its intent and would add excessively burdensome and expensive operation procedures. The commenter agreed 

with the need to protect surface and ground water from toxic- and acid-forming coal mine waste, but, the commenter 

argued, material that would not adversely affect the surrounding area should not be treated any differently than spoil 

material. 

 Although OSM agrees with the commenter that there may be circumstances when coal processing waste may not be 

toxic or acid forming, the definition is not vague. 
 Congress intended that special consideration be given to disposal of coal mine waste regardless of whether it is 

potentially toxic or acid forming. Thus, OSM has continued to require that all coal processing waste be disposed of 

according to Sections 816.81-816.86. A revision has been made to the requirements for backfilling and grading and 

disposal of excess spoil to recognize that nontoxic- and nonacid-forming coal mine waste may be disposed of with other 

spoil materials. 

 One commenter was concerned that the definitions of "coal processing waste" and "coal mine waste" do not include 

materials other than wasted earthen materials, such as pieces of equipment, wire, rags, etc. The definition of "coal 

processing waste" is not intended to include such non-earthen materials since their disposal is covered in Section 816.89 

on noncoal mine waste. Similarly, the definition of "coal mine waste" is not intended to include such non-earthen 

materials. 

 

COAL MINE WASTE 

 In the final rule, "coal mine waste" means coal processing waste and underground development waste. Coal 

processing waste is defined in this rulemaking and underground development waste was defined in a separate rulemaking 

(48 FR 32925, July 19, 1983) as waste rock mixtures of coal, shale, clay stone, siltstone, sandstone, limestone, or related 

materials that are excavated, moved, and disposed of from underground workings in connection with underground 

mining activities, including the development of drifts, shafts and adits. Thus, coal mine waste includes the two materials 

most likely to contain coal and coal waste products. 

 A commenter argued that the proposed definition of "coal mine waste" did not include waste generated by surface 

mining operations, only included waste created during underground development of a mine, and thus overlooked many 

other sources of waste generated from mining operations. 

 The commenter further suggested that reliance on the definition of "underground development waste" gives the 

erroneous impression that coal mine waste is composed of only earthen materials and is confined to that which is 

generated from only underground mines. 

 The revised definition includes two types of material: coal processing waste and underground development waste. 

This new definition more closely parallels the treatment of those materials by MSHA. 

 Earthen material excavated during surface mining activities other than material wasted during coal processing is 

classified as spoil. Disposal of such material is regulated under the backfilling and grading rules, 30 CFR 

816.101-816.107 and 817.101-817.107; and under the rules for disposal of excess spoil, 30 CFR 816.71-816.75 and 

817.71-817-75. Congress did not intend spoil material to be regulated as "coal mine waste" and OSM has, therefore, not 

included spoil in the final "coal mine waste" definition. The final definition has been revised slightly from the proposal to 

eliminate the perceived ambiguity that only coal processing waste from underground mining is included. The final 

definition of coal mine waste includes coal processing waste from either surface or underground mining activities. 

 

REFUSE PILE 

 The term "refuse pile" means a surface deposit of coal mine waste that does not impound water, slurry, or other liquid 

or semi-liquid material. Under this final definition, a refuse pile may contain coal processing waste and/or underground 

development waste. A spoil disposal facility would not be a refuse pile. The distinction is needed between coal mine 

waste and spoil since each material is treated differently in different sections of the rules. (Coal mine waste -- Sections

816.81-816.86, and Spoil -- Sections 816.102-816.105 and Sections 816.71-816.76). 

 One commenter proposed additional language in the definition of "refuse pile" to say that refuse piles do not include 

"temporary spoil piles of removed overburden material." The commenter understood that the proposed definition 

excluded overburden materials; but, by specifically excluding overburden in the definition, the commenter asserted OSM's 

intended exclusion would become definitive. 

 Language specifically excluding spoil from the definition of refuse pile would be redundant. The coal mine waste rules 

are intended to deal with a material which presents particular problems of combustibility and toxicity when disposed of in 
a fill or pile. Overburden materials when removed do not generally present such problems and are regulated under the 

backfilling and grading rules and the excess spoil rules. 

 One commenter mistakenly thought OSM had classified underground development waste as excess spoil. OSM did 

propose the definition for underground development waste within the same rulemaking as excess spoil, but the proposed 

and final rules do not classify it as excess spoil. 

 One commenter wanted to know when a refuse pile is not an impoundment and vice versa. Furthermore, the 

commenter asked whether refuse piles hold only dry wastes and what is meant by "dry." 

 In distinguishing between refuse piles and impoundments or impounding structures, the final rules do not characterize 

the deposits as "wet" or "dry." These terms are relative; almost every substance has some moisture content. Instead, the 

final rules distinguish the deposits as either containing existing or not containing material in a liquid or semi-liquid state. 

This is determinable from the physical characteristics of the material. 

 

IMPOUNDING STRUCTURE 

 A definition for "impounding structure" is added to the final rules to differentiate between the structure itself and the 

total impoundment which is also defined in Section 701.5. "Impoundment" refers to the entire facility including the 

impounding structure and the retaining area. "Impounding structure" refers to the structure of earth or other materials 

used to impound water, sediment, slurry or other liquid or semi-liquid material. MSHA rules use the term "impounding 

structure" rather than dams or embankments (30 CFR 77.216 et seq. ). In order to reduce confusion of terminology and 

increase compatibility of regulations, OSM has adopted this definition. It should be noted that the rules governing 

impoundments in 30 CFR 816.49 and 817.49 apply to the entire impoundment which contains the impounding structure. 

Thus the final rules regarding coal mine waste impounding structures augment and do not replace the rules governing 

impoundments. 

 A commenter suggested that the definition of "impounding structure" was too broad, especially with the phrase "or 

other materials", and should be limited. It could include piles of waste or structure built of earthen materials not normally 

considered as impoundments, such as any refuse pile associated with a coal preparation plant. 

 The definition is not too broad. Impoundments include dams and embankments designed to hold liquid or semi-liquid 

materials, including coal mine waste slurry or sediment in a semi-liquid state. To clarify the definition of "impounding 

structure," it has been revised to refer explicitly to dams, embankments, or other structures that impound water, slurry or 

other liquid or semi-liquid material. Final Section 816.84 applies to all impounding structures constructed of coal mine 

waste or intended to impound coal mine waste in a liquid or semi-liquid state. If an impounding structure is not 

constructed of coal mine waste and is not intended to impound a slurry waste, it would not fall under final Section

816.84. 

 

PART 816 -- PERMANENT PROGRAM PERFORMANCE STANDARDS -- SURFACE MINING 

ACTIVITIES 

 

SECTIONS 816.81-816.89 -- FINAL RULE FOR COAL MINE WASTE 

 Final Section 816.81 contains the general requirements that apply to all methods of coal mine waste disposal -- refuse 

piles and impounding structures. General provisions to be attained in the design, construction and maintenance of coal 

mine waste disposal facilities are included. The general requirements are supplemented by Sections 816.83 and 816.84. 

Dry refuse pile design, construction and maintenance are covered in Section 816.83 which applies to nonimpounding 

structures. Impounding structures either constructed of or for retaining liquid or semi-liquid coal mine waste are covered 

in Section 816.84. Final Section 816.87 deals with coal mine waste fires and final Section 816.89 governs the disposal of 

noncoal mine waste. 

 To assist the reader in understanding all the changes in the final rules, the following derivation table shows the 

relationship of the final rules to the previous rules and the proposed rules. The same changes apply for Part 817 --

Underground mining activities. 
____________________________________________________________________________________________

DERIVATION TABLE -- COAL MINE WASTE

Final Section Previous Rule Proposed Rule

Section 816.81:

(a) 816.81(a) 816.81(a) and 816.71(a)(1).

(a)(1) 816.81(b)(1) & 8126.81(a)(1) – 816.71(a)(1) 816.81(a)(3)(i) & 816.71(a)(1)(i).

(a)(2) 816.81(b)(3) & 816.81(a)(1) – 816.71(f) 816.81(a)(3)(iii) & 816.71(a)(3).

(a)(3) 816.81(a)(1) – 816.71(a)(3) 816.71(a)(1)(iii).

(a)(4) 816.81(b)(2) 816.81(a)(3)(ii).

(a)(5) 816.81(a)(2) 816.81(a)(3)(iv).

(b) 816.81(b) 816.81(b).

(c)(1) 816.81(a)(1) – 816.71(b) 816.85(c), 816.86(e) & 816.71(a)(2).

(c)(2) 816.81(a)(1) – 816.71(f) & (m) & 816.93(a)(2-3) 816.85(e), 816.86 (g - h) & 

816.71(a)(1)(ii) & (a)(2).

(d) 816.81(a)(1) – 816.71(m) 816.85(e), 816.86(h) & 

816.71(a)(2).

(e) 816.82(b) 816.82(b).

(f) 816.88 816.88.

Section 816.83:

Intro 816.85(a).

(a)(1) 816.83(a)(1) 816.83 (a)(1) & (b) & 816.71(a)(7) & (b)(1).

(a)(2) 816.83 (b) & (d) & 816.92(b) 816.83(b) & 816.71(a)(6).

(a)(3) 816.81(a)(1) & 816. 85(a) 816.71(b)(1).

(b) 816.83(c) 816.83(b) & 816.71(a)(6).

(c)(1) 816.81(a)(1), 816.85(a) & 816.92(a) 816.85(d) & 816.71(a)(5).

(c)(2) 816.81(a)(1) & 816.85(a) 816.71 (a)(8) & (b)(5-6).

(c)(3) 816.81(a)(1) & 816.85(a) 816.71(b)(5).

(c)(4) 816.85(d) 816.85(g).

(d) 816.82(a) 816.82(a) & 816.71(a)(4).

(d)(1) 816.82(a)(1) 816.82(a)(1) & 816.71(a)(4).

(d)(2) 816.82(a)(2-3) 816.82(a)(3) & 816.71(a)(4).

(d)(3) 816.71(a)(4).

(d)(4) 816.82(a)(4) 816.82(a)(3) & 816.71(a)(4).

Section 816.84:

Intro 816.86(a).

(a) 816.91(b) 816.86(a).

(b)(1) 816.93(a) 816.86(e).

(b)(2) 816.49(b) – 816.46 (q)(1) & (q)(4) & 780.25(c) 816.49(b)(1).

(c) 816.93(b) 816.86(i).

(d) 816.92(b) 816.86(d).

(e) 816.93(c) 816.86(j).

Section 816.87:

(a) 816.86 816.87(a).

(b) 816.87 816.87(b).

Section 816.89:

(a) 816.89(a) 816.89(a).

(b) 816.89(b) 816.89(b).

(c) 816.89(c) 816.89(c).

________________________________________________________________________________
 

SECTION 816.81(a) 

 Under final Section 816.81(a) all coal mine waste must be placed in new or existing disposal areas that are within 

the permit area and approved by the regulatory authority. 

 The previous reference to hauling and conveyance of coal mine waste has been deleted because the Act does not 

require any particular means of material handling or method of transportation to the disposal area and because 

transportation is not one of the more important factors in determining the stability of the waste disposal site. Both the 

transportation method and placement techniques used at a particular site are more appropriately selected during the 

design of an individual disposal facility. Specifically the words "hauled or conveyed and" have been removed while 

leaving the broad description "placed" to cover any method of transportation the mine operator may choose. One 

commenter agreed with the deletion in the proposed rule of the reference to hauling and conveyance from previous 

Section 816.81(a). 

 The background section of the preamble to the proposed rules (47 FR 26600) was cited by one commenter as 

containing the phrase "waste banks must meet the requirements of the rules for excess spoil fills and the requirements 

for waste banks." The commenter believed that refuse disposal sites should not meet the same criteria as excess spoil 

fills because of different material properties, different areas of disposal, and different revegetative requirements. 

 The phrase quoted by the commenter was included in a discussion of the previous rules and is one of the reasons 

the rules were revised. In these final rules, only those portions of the excess spoil rules pertinent to refuse pile and 

impounding structure construction are used to guide the disposal of coal mine waste. However, it should be noted 

that the revegetation requirements of Sections 816.111-816.116 must be met by both types of facilities and that many 

of the engineering considerations applicable to disposal of excess spoil are also applicable to the disposal of coal mine 

waste. 

 One commenter contended that by the removal of the requirement that the coal waste be hauled or conveyed and 

placed in a controlled manner in the disposal site, OSM is rejecting a position which it specifically embraced in the 

promulgation of the former rule. The commenter asserted that removal of the requirements would run counter to 

Congressional intention, citing legislative history, H. Rep. No. 95-218, 95th Cong. 1st Sess., 101, 103 and 125 

(1977). 

 In the preamble to the former rule, OSM specifically noted the problem with uncontrolled end- or side-dumping of 

waste onto disposal sites and chose not to allow it; instead OSM required that the waste be hauled and conveyed and 

placed in a controlled manner (44 FR at 15209-10). OSM has received this issue and believes it was wrong in not 

allowing controlled gravity placement of material. 

 The final rule is revised to require that the coal mine waste be placed in a controlled manner in a disposal area. The 

proposed rule only required the placement of the waste. The addition of the phrase "controlled manner" in Section

816.81(a) is supported by the legislative history cited by the commenter, H. Rep. No. 95-218, at p. 125. 

 The legislative history does not indicate, however, that the means of transportation of material to the disposal site 

must be regulated or that the material must be hauled or conveyed to the disposal site. As stated in the discussion to 

the proposed rule (47 FR at 26600), any material handling technique consistent with the facility design could be 

acceptable. These rules retain the features necessary to maintain stability of the site and to minimize the potential for 

combustion after the material is placed in the disposal site. 

 One commenter took issue with the proposed exclusion of a sentence from previous Section 816.81(a) that coal 

waste be disposed of within the permit area. The reason given for opposing the removal was that the explanation in 

the proposed rule suggested that the former rule was more precise. The commenter also felt the proposed removal 

leaves unclear a basic requirement of the Act. 
 The sentence was proposed to be removed because it was deemed unnecessary. Disposal of coal mine waste must 

be within the permit area. However, the commenter's suggestion has been accepted and the final rule has been revised 

to eliminate any possible ambiguity by requiring disposal "within a permit area." 

 One commenter took issues with the deletion of the reference to previous Sections 816.71 and 816.72 in proposed 

Section 816.81(a). The commenter was concerned that the change would delete the incorporation of the design 

standards of the excess spoil rules which the commenter considered essential requirements for coal mine waste refuse 

pile construction. The commenter also urged that the reference to Section 816.71 not be deleted from the final rule 

for refuse pile construction, since that section sets basic engineering standards for refuse pile construction. 

 OSM agrees that many of the requirements for construction of excess spoil fills contained in revised final Sections

816.71 and 816.72, are basic engineering standards which are also applicable to construction of coal mine waste 

disposal structures. Because construction of coal mine waste disposal structures requires some different or additional 

requirements and because the revised refuse pile standards in Section 816.83 reference the MSHA rules of Sections

77.214 and 77.215, the final rule does not reference Sections 816.71 and 816.72 in their entirety, but adds the 

applicable excess spoil requirements directly in Sections 816.81 and 816.83. Inclusion of these requirements directly, 

rather than by reference, should aid in understanding the final rules adopted. With the reference to the MSHA rules 

and use of specific provisions from the excess spoil rules that are also applicable generally to coal mine waste disposal 

and specifically to refuse pile construction, these rules meet the requirements of the Act. 

 To assist the reader in understanding the relationship between the requirements for refuse piles and those for 

excess spoil fills, the following table has been prepared to indicate where applicable provisions have been included in 

Sections 816.81 and 816.83 from Sections 816.71 and 816.72. The provisions in Section 816.81 are applicable both 

to refuse piles and impounding structures. The same comparison applies to Part 817 -- Underground mining activities.

____________________________________________________________________________________________

COMPARISON TABLE -- EXCESS SPOIL RULES AND COAL MINE WASTE RULES

Excess spoil fills Coal waste disposal and refuse pile rules

Section 816.71:

(a) and (a)(1-3) 816.81 (a) and (a)(1-3).

(b) 816.81(c).

(c) N/A.

(d)(1) 816.81(d).

(d)(2) N/A.

(e)(1) 816.83(c)(1).

(e)(2) N/A.

(e)(3) 816.83(c)(2).

(e)(4) 816.83(c)(3).

(e)(5) 816.83(c)(4).

(f)(1) 816.83(a)(1).

(f)(2) 816.83(a)(2).

(f)(3) 816.83(a)(3).

(g) 816.83(b).

(h) 816.83(d).

(i) N/A.

(j) 816.81(f). 

Section 816.72:

(a) 816.83(a)(2).

(b) N/A.

____________________________________________________________________________________________
 Certain of the excess spoil requirements have not been included in the final coal mine waste rules. Section 

816.71(c) of the excess spoil rules requires that the fill be located on the most moderately sloping and naturally stable 

areas available. This requirement is adopted for excess spoil disposal from section 515(b)(22)(E) of the Act. The Act 

does not include a similar requirement for disposal of coal mine waste. 

 Under most circumstances the provisions of revised Section 816.71(c) would also be appropriate for application 

with respect to construction of refuse piles. However, since the most moderately sloping areas in many areas of the 

country are also stream valley bottom or similar areas with more sensitive hydrologic features, it is not necessarily 

desirable to require the location of refuse piles in these areas. The objective of the requirement for location of excess 

spoil fills is to help ensure the stability of the final fill. When designing coal mine waste disposal facilities, protection 

of the hydrologic balance often can be as important a consideration in evaluating the appropriate location for the 

facility as locating the fill on the most moderately sloping area available. Stability of refuse piles will nevertheless be 

ensured through the requirements regarding minimum static factors of safety, placement of waste, design certification, 

construction inspections and other applicable provisions. For these reasons a parallel requirement to revised Section

816.71(c) has not been included in the rules for coal mine waste. 

 Section 816.71(d)(20) of the revised excess spoil rules requires the construction of rock toe buttresses or keyway 

cuts to help ensure the stability of the fill where the toe of the fill rests on the downslope. This requirement is adopted 

for excess spoil disposal from section 515(b)(22)(F) of the Act. The Act does not include a similar requirement for 

disposal of coal mine waste. 

 The construction of a keyway cut or a rock toe buttress may help to ensure the stability of the fill and minimize the 

potential for mass movement of the spoil material. However, keyway cuts, if not used properly, may also adversely 

affect foundation conditions. Under the final rule, refuse piles must be constructed to a minimum factor of safety of 

1.5 and meet other requirements applicable to ensuring the stability of the waste disposal facility. The use of keyway 

cuts or rock toe buttresses under the final refuse pile rule has been left to the discretion of the design engineer. Since 

these structures are not always necessary design features and the Act does not require their use in refuse piles, no 

equivalent provision to Section 816.71(d)(2) has been included in the refuse pile rules. 

 Section 816.71(e)(2) of the revised excess spoil rules requires that spoil be placed in 4-foot lifts, unless otherwise 

approved by the regulatory authority. This section is not consistent with the requirements of MSHA's rules at 30 CFR 

77.215(h), which require that refuse piles be constructed in 2-foot lifts, unless otherwise approved. Since MSHA's 

rules supersede any less stringent provision in OSM's rules, the requirements of 30 CFR 77.215(h) have been relied 

upon in this final rule to govern refuse construction. Thus, Section 816.71(e)(2) has not been made applicable to 

refuse piles. 

 Section 816.71(i) governs when coal mine waste may be disposed of in excess spoil fills. It is not necessary to 

include an equivalent provision in the coal mine waste rules. 

 One commenter noted that under previous Section 816.71(k), coal waste could not be used in head-of-hollow or 

valley excess spoil fills and that the definitions of those terms in Section 701.5 excluded coal waste. The commenter 

asserted that prudent engineering dictates that due to the inherent instability of the waste material it should not be 

used in steep slope areas. 

 OSM disagrees. The prohibition against use of coal mine waste in head-of-hollow and valley fills has been 

eliminated in the final rules pertaining to excess spoil disposal. The physical, chemical and engineering properties of 

coal mine waste can be adequately defined by proper testing techniques. This makes it feasible to analyze, design and 

properly apply the necessary construction controls to place coal mine waste in excess spoil fills so as to meet all 

performance standards of the Act and rules including the minimum long-term static safety factor of 1.5. 

 The rules adopted require the operator to use qualified registered professional engineers for analysis and design 

and that the construction be certified by a qualified registered professional engineer. In addition, the rules require 

site-by-site approval by the regulatory authority. They further specify that when coal mine waste materials are placed 

in excess spoil fills, such disposal must not only comply with the coal mine waste disposal requirements in Sections
816.81 and 816.83, but also must meet additional standards contained in final Section 816.71(i). The reader is 

referred to the revised final excess spoil rule for additional discussion on these requirements. 

 In steep slope areas, where head-of-hollow and valley fill excess spoil facilities are normally constructed, coal mine 

waste has in the past been disposed of in the same or similar fill configurations. By allowing the combination of such 

materials in fills under proper design and construction techniques, this rule should reduce unnecessary duplication of 

fills and reduce the number of valley fills while maintaining environmental and safety standards. Coal mine waste can 

be disposed of in such facilities without any increase in adverse impacts. 

 Section 816.72(b) governs the use of rock-core chimney drains in head-of-hollow excess spoil fills. OSM did not 

propose to make this provision applicable to refuse piles, nor did the prior rule specifically provide for the use of 

rock-core chimney drains in refuse piles. If at some time in the future it is determined that use of rock core chimney 

drains is appropriate for refuse pile construction, OSM will consider proposing a rule change at that time. 

 Proposed Section 816.81(a)(2) provided that all coal mine waste shall be placed in structures that are designed, 

constructed, inspected and maintained in accordance with Sections 816.82 through 816.86. This proposed section did 

not include any substantive requirement and is unnecessary in the final rule. Therefore, it has not been adopted, and 

no change is intended by this omission. 

 

SECTION 816.81(a)(1) 

 Final Section 816.81(a)(1) requires that coal mine waste be placed in a manner to minimize adverse effects of 

leachate and surface runoff on surface and ground water and includes requirements proposed at Section

816.81(a)(3)(i) with minor revisions. 

 Two commenters recommended that the phrase "not adversely affect ground or surface water quality or quantity" 

in Section 816.81(a)(3)(i) should be changed to "minimize adverse effects to ground or surface water quality and 

quantity." This, according to the commenters, would be consistent with language found in similar rules throughout 

Parts 816 and 817. 

 The comment has been accepted. The suggested change conforms with the guidance presented in the hydrologic 

balance protection provisions of Section 816.41. In this section, minimization of impact on ground and surface water 

quality and quantity is emphasized. Effluent from coal mine waste should be prevented or controlled so that the 

receiving system will still contain water that meets applicable Federal and State water quality standards and protects 

the hydrologic balance. In accordance with the hydrologic balance rules, the operator would use mining and 

reclamation techniques that minimize water pollution and changes in flow. 

 One commenter suggested that a clause be added to Section 816.81(a) to tie it to the National Pollution Discharge 

Elimination System Permit (NPDES). 

 OSM agrees that the NPDES permit requirements are applicable to point source discharges from coal waste 

facilities. This requirement is incorporated in Sections 816.41 and 816.42 and applies to all discharges from coal 

waste facilities. Therefore, although the commenter is correct, no change is needed in the final coal waste rules to 

accommodate the commenter's concern. Although these regulations require compliance with NPDES requirements, 

compliance with such standards will not alone ensure compliance with the hydrologic protection requirements of 

Section 816.81(a). 

 

SECTION 816.81(a)(2) 

 Final Section 816.81(a)(2) requires that coal mine waste be placed in a manner to ensure mass stability and prevent 

mass movement during and after construction. The final rule includes aspects of proposed Sections 816.81(a)(3)(iii) 

and 816.85(e). Proposed Section 816.81(a)(3)(iii) would have required that the structure be stable. The final rule 
revises this standard, in accordance with proposed Section 816.85(e) (and the rule for excess spoil, Section

816.71(a)(2)), to make it clear that the facility must not only be stable upon completion, but also during construction. 

 

SECTION 816.81(a)(3) 

 Final Section 816.81(a)(3) requires that coal mine waste be placed in a manner to ensure that the final disposal 

facility is suitable for reclamation and revegetation compatible with the natural surroundings and the approved 

postmining land use. This section has been added to the final rule in response to a commenter who requested 

reconsideration of the proposal to delete certain requirements included in previous Sections 816.71 and 816.72 and 

made applicable to coal mine waste be reference. The commenter pointed out that Section 515(b)(11) of the Act 

requires compatibility of the coal mine waste with the natural surroundings. The language of final Section

816.81(a)(3) parallels requirements included in the final excess spoil rule and will ensure that the final postmining 

surface of the disposal facility is reclaimed to a condition compatible with the natural surroundings. 

 

SECTION 816.81(a)(4) 

 Final Section 816.81(a)(4) provides that coal mine waste shall be placed in a manner so as not to create a public 

hazard. This paragraph is the same as proposed Section 816.81(a)(3)(ii). 

 One commenter suggested that "public hazard" be broadened to "public health or safety hazards" consonant with 

the findings of Section 101(c) of the Act. The commenter argued that the Act requires consideration of both health 

and safety considerations, as well as protection of property and the quality of life in adjacent communities. 

 OSM agrees that coal mine waste should be disposed of in a manner that does not create hazards to the public 

health or safety. The provision in the final rule applies the public hazard consideration to coal mine waste within, as 

well as outside the permit area. Protection against creating a public hazard is sufficiently broad to refer to both health 

and safety. No change was made in the rule as a result of the comment. 

 

SECTION 816.81(a)(5) 

 Final Section 816.81(a)(5) requires that coal mine waste be placed in a manner to prevent combustion. This 

paragraph is the same as previous Section 816.81(a)(2). One commenter agreed with the proposed wording change 

from "to prevent combustion" in the previous rule to "minimize the potential for combustion" as being more realistic. 

Another commenter opposed the change on the grounds that the goal of preventing combustion was set by Congress 

and the OSM cannot substitute its judgment in setting standards for environmental protection. The commenter also 

pointed out that the legislative history, H.R. Rep. 95-218 at 125, states that the goal of sections 515(b)(11) and 

516(b)(5) of the Act is "to prevent combustion." Therefore, the commenter felt the rule cannot be changed in 

proposed Section 816.81(a)(3)(iv) to minimizing the potential for combustion. 

 OSM agrees with the objective of preventing combustion in coal mine waste. The final rule which requires that 

coal mine waste disposal facilities by designed to prevent combustion has been changed to explicitly recognize this 

objective. As a practical matter there is little difference between the previous and proposed standards. The language 

"minimize the potential" for combustion would merely have recognized the impossibility of achieving an absolute. 

 

SECTION 816.81(b) 

 Final Section 816.81(b) permits placement, within the permit area, of coal mine waste from sources outside the 

permit area with the approval of the regulatory authority. This final language follows Section 816.81(b) of the 

proposed rule and the reader is referred to the preamble of the proposed rule for additional discussion on the 

paragraph (47 FR 26601). 

 A commenter urged that coal mine waste from outside the permit area be approved by the regulatory authority 

only after a determination that such waste will not jeopardize the stability of the fill within the permit area. The 
commenter also urged that the phrase from the former rule mentioning waste from other mines and abandoned waste 

fills not be deleted since it suggests the type of waste an operator may have approved for disposal. 

 No specific provision is necessary in the final rule with regard to a stability determination. Regardless of the source 

of the coal mine waste, the requirements for stability must be satisfied. Further, the definition, in Section 701.5, of 

"coal mine waste" is sufficiently specific with regard to the types of material covered by this paragraph. In addition, 

disposal of all waste must be approved by the regulatory authority in the reclamation plan, 30 CFR 780.18(b)(7) 

(toxic materials) and 780.25(d) (waste banks). The latter rule requires compliance with the coal mine waste rules 

which set stability as a performance standard that must be achieved. 

 The same commenter also urged that the hydrologic, geotechnical, physical and chemical analyses required in 

previous Section 816.81(b), upon which the regulatory authority had to base its decision to allow disposal of coal 

mine waste from outside the permit area, not be deleted. In the commenter's view such analyses are necessary for the 

regulatory authority to make an informed judgment. 

 In order for such waste to be disposed of within the permit area, the regulatory authority's approval is required 

under Section 816.81(b). The existing permitting standards require sufficient information to allow the regulatory 

authority to make the necessary determinations. Among those requirements which may be applicable are Section

780.18(b)(7) which pertains to toxic materials, Section 780.21 which pertains to protection of water, and Section

780.25(d) for waste pile stability and hazards. Thus, sufficient analyses and information will be furnished to the 

regulatory authority under the permit application requirements. They need not be included in the performance 

standards. 

 

SECTION 816.81(c) 

 Final Section 816.81(c) contains requirements pertaining to the certification of the design of the facility by a 

registered professional engineer. 

 Final Section 816.81(c)(1) requires that the disposal facility be designed using current, prudent engineering 

practices and that it meet any design criteria established by the regulatory authority. A qualified registered 

professional engineer, experienced in the design of similar earth and waste structures, must certify the design of the 

disposal facility. This requirement parallels the requirement of proposed Section 816.85(c) and Section 816.86(e), 

which referenced a similar provision in Section 816.49. No comments were received on this aspect of the proposal. 

However, the language of the final rule has been revised to more closely follow the language of similar provisions in 

the rules on excess spoil disposal. No major change in the section is intended by the modification from the proposal. 

 Final Section 816.81(c)(2) sets a static safety factor of 1.5 as the necessary degree of stability and requires the 

foundation and abutments of the disposal facility to be stable under all conditions of construction. This provision 

parallels proposed Sections 816.85(e) and 816.86 (g) and (h) and includes a similar provision from Section

816.71(b)(2). 

 Two commenters requested inclusion of a requirement that refuse piles meet a minimum static safety factor of 1.5 

as well as requiring impounding structures to meet a 1.5 safety factor. The commenters pointed out that under 

MSHA rules, refuse piles with slopes of less than 2h:1v which are built in 2-foot lifts would not necessarily be 

required to meet a minimum factor of safety. One of the commenters suggested that a demonstration of stability at a 

slope of 3h:1v be required. Several other commenters urged that all waste banks be constructed with a 1.5 safety 

factor as an indication of proper design. A commenter said that there are times when such fills may not be stable 

depending on the amount of fines and moisture in the material. Another commenter said no fill design should be 

approved unless it is demonstrated to be stable with a factor of safety of at least 1.5. The comments suggesting that 

all waste disposal facilities meet a factor of safety of 1.5 have been accepted and added to the final rule as a design 

requirement in new Section 816.81(c)(2). This is one provision that augments MSHA's standards. 

 
SECTION 816.81(d) 

 Final Section 816.81(d) requires that sufficient foundation investigations and laboratory testing of foundation 

material be performed in order to determine the design requirements for foundation stability. The analyses of the

foundation conditions must take into consideration the effect of underground mine workings, if any, upon the stability 

of the disposal facility. The final rule is adopted from proposed Sections 816.85(e) and 816.86(h). 

 One commenter proposed adding a new section containing the same provisions as proposed Section 816.71(a)(2) 

of the excess spoil rules. In effect, this would apply requirements for testing and designing of foundation and 

abutments to coal mine waste facilities as well as to the excess spoil fills. 

 This comment was accepted and the provision included in the final rule in Section 816.81(d). 

 A commenter pointed out that the testing requirement for refuse piles in proposed Section 816.85(e) was confined 

to foundation materials. In the commenter's view, the materials used in the embankment, not just in the foundation of 

it, should also be analyzed. 

 Because of the importance of a refuse pile's foundation stability, specific provisions have been included relating to 

foundation evaluation. Inclusion of a section on foundation evaluation, however, is not intended to preclude 

necessary testing of the materials used in the embankment the stability of which must also be assured. The appropriate 

type and extent of embankment material testing can be determined by the qualified engineer under final Section

816.85(c). Inclusion of a section specifically related to embankment material testing is not considered necessary in the 

final rule. 

 

SECTION 816.81(e) 

 Under final Section 816.81(e), should any examination or inspection disclose a potential hazard, the regulatory 

authority must be promptly notified of the finding, and of the emergency procedures formulated for public protection 

and remedial action to be taken. If procedures adequate to protect the public cannot be implemented by the operator, 

the regulatory authority must be notified immediately. The regulator authority must then notify the appropriate 

agencies that other emergency measures are required to protect the public. Final Section 816.81(e) adopts proposed 

Section 816.82(b) with editorial revision, and it is made applicable to all coal mine waste disposal facilities. 

 One commenter thought the requirements of the proposal were unclear in that they referred to an emergency plan, 

yet did not require the development of such a plan. The commenter suggested that the emergency plan should be 

prepared before a potential hazard develops. 

 The use of the language "emergency plan" in the proposed rule was intended to refer to the plan that is formulated 

to respond to any observation that a hazard may exist. Because the great majority of coal mine waste disposal 

facilities do not pose any significant threat to the public, the final rule does not include a general requirement that the 

operator develop an elaborate emergency plan in every case. Since prompt or immediate notification is required, the 

regulatory authorities will be in a position to implement necessary emergency procedures and ensure that appropriate 

actions are taken as needed. Additional requirements for development of emergency response plans are included in 

MSHA's rules which must also be met. 

 A commenter noted that proposed Section 816.82(b) imposed the responsibility on the operator of promptly 

notifying the regulatory authority of potential hazards, but that there was no requirement that the regulatory authority 

provide names and addresses of persons to contact, especially during non-business hours. The commenter also noted 

that operators, all too often, are unaware of the existence of "appropriate" agencies and operators should be supplied 

with phone numbers, etc., for these agencies. 

 The final rule has not been changed based upon this comment. OSM experience indicates that in nearly every case 

operators are sufficiently familiar with the local regulatory authority personnel to be able to provide the necessary 

notifications without further elaboration in the final rule. Under the circumstances that exist within a particular locale 
or State, a regulatory authority may deem it appropriate to provide operators with names and addresses of persons 

that may be contacted during nonbusiness hours. However, no change in the final rule is considered necessary to 

accommodate such circumstances. 

 One commenter cited the failure of a slurry impoundment and the need for emergency diversion construction that 

would have temporary environmental impacts as a situation in which the agency personnel may have to make hard 

decisions in which short-term losses are balanced against long-term gains. The commenter used this theoretical 

situation to show the need for regulatory authority personnel to be trained in handling coal field emergencies and the 

need for the contact person at the regulatory authority to have the authority to make emergency decisions. 

 OSM agrees that there may be situations where, during emergencies, decisions may have to be made to balance 

short-term and long-term problems and solutions. OSM supports and encourages the training of regulatory authority 

personnel in handling coal field emergencies. 

SECTION 816.81(f) 

 Previous Section 816.88 provided for coal processing waste to be returned to underground mine workings in 

accordance with a disposal program approved by the regulatory authority and MSHA under Section 784.25 of this 

chapter. 

 As proposed, final Section 816.81(f) revises the previous rule to clarify that "coal mine waste" may be returned to 

underground mine workings under a waste disposal program designed according to Section 784.25 of this chapter 

and jointly approved by the regulatory authority and MSHA. The proposed terminology change of "coal processing 

waste" to "coal mine waste" would allow both coal processing waste and underground development waste to be 

returned to underground mine workings. 

 Because the definition of coal mine waste under the final rule includes underground mine development waste, the 

additional reference to Section 784.19 in previous Section 817.88 is redundant of the requirement in Section 784.25 

and is not needed. It has therefore been deleted as was proposed in Section 816.88. 

 A commenter pointed out that MSHA rules do not provide for approval of plans to return coal mine waste to 

underground workings. The final rule has not been changed from the proposal. All underground mining activities 

require approval and/or coordination with MSHA. The final rule ensures such coordination and is in accordance with 

sections 516(a) and 515(b)(12) of the Act. 

 The U.S. Environmental Protection Agency asked OSM to note in this rule that disposal of coal mine waste in 

underground mine workings must be in compliance with any applicable requirements of the Underground Injection 

Control Program promulgated under Part C of the Safe Drinking Water Act (Pub. L. 93-523, as amended, 42 U.S.C. 

300f et seq. ) The list of Class V wells in 40 CFR 146.05(e) includes sand backfill and other backfill wells used to 

inject a mixture of water and sand, mill tailings or other solids into mined out portions of subsurface mines whether 

what is injected is a radioactive waste or not. This provision may apply to the underground disposal method described 

in Section 816.81(f). At this time, the only requirements that apply to Class V wells are (1) the inventory reporting 

requirement in 40 CFR 122.37(c)(1); and (2) the general prohibition against contamination of underground sources of 

drinking water in 40 CFR 144.12. 

 

SECTION 816.83 - COAL MINE WASTE: REFUSE PILES 

 Final Section 816.83 contains standards that apply to coal refuse piles which supplement the general standards of 

Section 816.81. It also requires that refuse piles also meet MSHA requirements at 30 CFR 77.214 and 77.215. 

Referencing of these MSHA standards makes them enforceable as part of OSM's permanent program regulations. 

 Section 816.83, by reference to 30 CFR 77.214, includes the four requirements of that section. Among these are 

the requirements that the refuse pile be located a safe distance from all underground facilities and surface installations 

and that the refuse pile not be located over abandoned mine openings or streamlines. Also 30 CFR 77.214 requires 
clay or inert material to be placed between new refuse piles and old refuse piles or exposed coal beds. Roadways to 

refuse piles must be fenced or otherwise guarded to restrict the entrance of unauthorized persons. 

 Among the ten referenced requirements of Section 77.215 is the requirement for layering and compaction of the 

waste to minimize flow of air through the pile. Under Section 77.215(b), new refuse is prohibited from being placed 

on an existing burning pile except as a fire control or extinguishing measure. Under Section 77.215(c), sealants, such 

as clay, must be used to seal the surface of piles to inhibit further spontaneous ignition. Under Section 77.215(d), 

such seals must be protected from erosion by drainage facilities to protect their integrity. Under Section 77.215(e), 

impeding or impounding surface water flow is prohibited. Under Section 77.215(g), addition of extraneous 

combustible materials to the piles, such as waste wood, paper, trash or lubricants, is not allowed. 

 Construction of the refuse pile in compacted lifts of 2-feet maximum thickness is required under Section 77.215(h) 

and the external slopes cannot exceed 27 degrees. However, MSHA's District Manager may approve thicker layers 

and steeper slopes when maintenance of a 1.5 minimum safety factor is supported by engineering data. 

 Under Section 77.215(i), foundations for new refuse piles and additions to existing refuse piles must be cleared of 

all vegetation and undesirable material that would adversely affect stability. Under Section 77.215(j), all fires in refuse 

piles must be extinguished and the method used must be in accordance with a plan approved by the MSHA District 

Manager. 

 Three commenters supported using the MSHA refuse pile construction standards under Sections 77.214 and 

77.215 (a)-(h) in the OSM rules. The commenters felt the move to include MSHA rules was a more realistic 

approach, used rules that have withstood the test of time and eliminated duplication. Other commenters objected to 

the use of MSHA rules and argued that OSM rules should be stronger and more broadly aimed than the MSHA rules. 

 A commenter stated that it was an erroneous assumption that MSHA rules protect the environment or the public 

health and safety. The commenter asserted that MSHA's mandate only extends to protection of miner's health and 

safety at the mine site. 

 Although these final rules reference MSHA requirements for construction of coal refuse piles they also include a 

number of additional requirements in Section 816.81, which were discussed earlier, and in Section 816.83, which are 

discussed below. The rules recognize that the goals of the Surface Mining Act are achieved in part by rules already 

promulgated by MSHA. The standards included in MSHA's rules, which were promulgated primarily to protect 

miners, also help to protect the environment and public health and safety. Thus, OSM may reference MSHA's 

standards in its rules governing these same topics while at the same time reducing unnecessary conflict and 

duplication between regulatory schemes. 

 A commenter pointed out that MSHA's rule in Section 77.214 does not prohibit refuse piles from being located 

over streams as was stated in the preamble discussion on proposed Section 816.85(a). 

 MSHA rules require that a refuse pile not be located over abandoned openings and streamlines. The statement in 

the proposed rulemaking notice was in error. 

 One commenter protested that the inclusion of a reference to Section 77.215(h) in Section 816.85(a) would allow 

the construction of refuse piles in lifts greater than 2 feet thick. In the commenter's view, such an allowance is wrong 

from an engineering standpoint because, even with a 2-feet thick lift requirement, adequate compaction is difficult to 

achieve. Another commenter supported controlled placement of dry waste in 2-foot thick compacted lifts. A third 

commenter noted that although, as stated in the proposed rule (47 FR 26613), some refuse left in nonstructural, 

uncompacted lifts of greater than 5 feet have existed without burning, OSM did not indicate that spontaneous ignition 

has occurred within 10 days in refuse left in piles of less than 5-foot lifts. 

 OSM has retained reference to MSHA rules to govern lift thickness. While placement of coal mine waste in 2-foot 

thick lifts may be appropriate in most instances, there are also situations where such a restriction will not be necessary 

to achieve sound waste disposal. Additionally, as noted by one commenter, lift thickness alone is not necessarily the 
most important feature in preventing combustion. The final rule ensures the stability and sound disposal of the coal 

mine waste regardless of whether or not an exception is granted from the 2-foot lift requirement. Under any case, the 

final compacted fill must satisfy a safety factor of 1.5 and the disposal facility must be designed to prevent 

combustion. 

 A commenter objected to the statement in the preamble to proposed Section 816.83 that "any material handling 

technique is acceptable as long as the material is placed in 2 foot lifts and compacted." The commenter continued by 

stating that if material 2 feet in diameter was being placed, little compaction would be obtained and that compaction 

has little meaning unless it is related to some standard such as Proctor or Modified Proctor measurement. 

 If the waste material is 2 feet or larger in diameter, under 30 CFR 77.215(h) the MSHA District Manager may 

approve lifts thicker than 2 feet and with slopes exceeding 27 degrees provided that engineering data substantiates 

that a minimum safety factor of 1.5 will be attained. Additionally, it is not necessary to specify a numerical

compaction standard. The primary purpose of compaction is to ensure stability of the facility. Compaction also has 

the benefit of minimizing air movement through the fill. However, coal mine waste disposal facilities left in 

uncompacted lifts 5 feet thick have existed for many years without stability or burning problems (U.S. Mining 

Enforcement and Safety Administration, 1975, p. 8.69). The specific numerical requirement for compaction is thus 

more appropriately determined based upon the particular design, site conditions and waste characteristics. The final 

rule provides this flexibility while ensuring stability and compaction as necessary. Thus, the final rule does not include 

a specific compaction standard other than the MSHA requirement. 

 A commenter argued that difficulties may arise in complying with the explicit construction requirements for coal 

mine waste disposal where combinations of waste and spoil are disposed of in the same area. 

 OSM recognizes that where coal mine waste is disposed of in a backfill or excess spoil disposal area, more 

restrictive requirements may apply to the entire disposal area. No change, however, has been made in these final rules 

based upon this comment. The final rule will help ensure that coal mine waste is properly disposed of regardless of 

where the final disposal location may be. 

 

SECTION 816.83(a) 

 Final Section 816.83(a) provides that if the disposal area contains springs, natural or manmade water courses, or 

wet weather seeps, the design shall include diversions and underdrains as necessary to control erosion, prevent water 

infiltration into the disposal facility, and ensure stability. Underdrains must comply with the requirements of Section

816.71(f)(3). Runoff from areas above the refuse pile and runoff from the surface of the refuse pile must be diverted 

into stabilized diversion channels designed to meet the requirements of Section 816.43 and to safely pass the runoff 

from a 100-year, 6-hour precipitation event. Uncontrolled surface drainage may not be diverted over the outslope of 

the refuse pile. 

 The water control measures of the final rule have been adopted from proposed Section 816.83, except that the 

proposal which would have merely required control of surface runoff has not been adopted in favor of retaining the 

diversion channel requirement. Editorial revisions have been made to increase understanding and to more closely 

parallel similar provisions applicable to the disposal of excess spoil. 

 In response to one EPA comment, OSM has added language clarifying that the runoff diverted from undisturbed 

areas need not be commingled with runoff from the surface of the refuse pile. 

 One commenter maintained that not all coal seams and coal mine waste are acidic or toxic as implied in proposed 

Section 816.83(a) and that in certain instances, water from refuse piles is in good or satisfactory condition. Therefore, 

the commenter suggested the requirements be revised to provide that the subdrainage system be covered so as to 

protect against the entrance or leachate from "any coal mine waste which is shown to be acidic or toxic." 

 OSM has not accepted the change proposed by the commenter because caution is necessary when dealing with 

coal mine waste. Also the objective of the subdrainage system is primarily to help ensure stability and is not related 
solely to the control of potentially acidic or toxic drainage. 

 One commenter concurred with the proposed change in the diversion design storm from a 100-year, 24-hour event 

to a 100-year, 6-hour event. Two other commenters disagreed with the change. One of the commenters believed that 

the proposed change would allow smaller diversions which would lead to certain failure of the channel. The other 

commenter contended that there is no justification to lower the storm event for design of diversion channels in 

Section 816.23(b) to a 100-year, 6-hour event and that MSHA has no particular expertise in design of surface 

diversion structures that would justify reliance on the 6-hour event. The commenter believed the previous rule 

standard of the 100-year, 24-hour event would produce more long-term protection because the former standard is 

more likely to avoid ditch scouring and overtopping, thereby, reducing the chance of infiltration into the refuse pile. 

 These commenters provided no data to support their conclusions. The change from the 100-year, 24-hour event, 

to the 100-year, 6-hour event has been made to be consistent with MSHA requirements and the standards for excess 

spoil, valley, and head-of-hollow fills. Reliance upon the 100-year, 6-hour event is a safety standard that has proven 

successful. (See MSHA's 1979 Design Guidelines for Coal Refuse Piles and Water Sediment or Slurry Impoundments 

and Impounding Structures.) 

 OSM recognizes that the 24-hour duration storm usually results in a runoff volume and peak somewhat higher 

than the 6-hour storm for the same area (see 44 FR 15207). However, it also has been reported that in some 

watersheds, the 100-year, 6-hour event can result in a higher peak flow. For a given storm frequency, the time of 

concentration and watershed shape can be more influential in determining the peak flow than the storm duration. In 

most cases the differences in any increased volume of peak flows will be minor from a practical design and 

construction standpoint. Any computed increase in peak flow volume would most likely not result in any significant 

change in flow depth or flow velocities and, correspondingly, any alteration in channel design. For instance, in a rock 

riprap-lined channel, velocity increase from resulting increase in peak flows would not likely alter the specified rock 

size used in the design. Therefore, the change in precipitation event for design of diversions on refuse piles will not 

result in any significant change in the level of protection afforded. 

 A commenter misinterpreted the reference by OSM to the MSHA recommendation of the 100-year, 6-hour storm 

event for the design capacity of diversion ditches in proposed Section 816.83(b). The commenter said OSM was 

incorrectly claiming that MSHA advocated that OSM adopt the standard. MSHA did not advocate the adoption of 

their standard. MSHA made a public recommendation which it published in a set of design guidelines. OSM proposed 

using the MSHA standard for consistency and because it establishes an adequate level of protection. 

 One commenter felt proposed Section 816.83(b) presented a dilemma in that many refuse piles are constructed 

with the top edge sloping towards a hillside in order to minimize erosion. In doing so, however, it could result in the 

pile being considered an impoundment by OSM's definition. 

 If the final slope of the top of a refuse pile resulted in the creation of an impoundment, then the commenter is 

correct in concluding that the requirements for impounding structures in Section 816.84 and for impoundments in 

Section 816.49 would have to be met. A properly designed surface drainage system from a refuse pile should remove 

the drainage water from the top of the fill and not result in the creation of an impoundment. OSM foresees no conflict 

with this design technique and the definition of impoundments. Final Section 816.83(c)(3) prohibits permanent 

impoundments on completed refuse piles. 

 One commenter argued against the removal of the requirement in previous Section 816.83(b) to divert all surface 

runoff from the area above the refuse pile and from the refuse pile surface around the fill. The commenter suggests 

that the new rule will allow methods for controlling surface drainage which threaten the stability of the fill. 

Furthermore, the commenter argued that diverting surface water around the fill is in the operator's interest since 

infiltration into it brings water into contact with deleterious substances in the fill which would necessitate treatment of 

the discharge. 

 Another commenter believed it is essential that OSM provide for mandatory diversion of all surface drainage 

around refuse piles. 
 The final rule has included provisions similar to those in the previous rule requiring diversion of runoff from areas 

above the refuse pile. While such diversion may not always be necessary to ensure the stability of the fill, the 

requirement will also help minimize water contact with any potentially acid-forming or toxic-forming materials that 

may be in the coal mine waste. Two commenters recommended that the flood plain capacity be included in the 

diversion capacity when the water stage elevation and velocity from a 100-year, 6-hour precipitation event will not 

interfere with embankment stability and public health and the environment is not endangered. One of these 

commenters also proposed including the capacity of existing channels and banks in the design of diversion channels. 

 OSM agrees. However, no change is deemed necessary in the final rule. Revised Section 816.43 will provide that 

for purposes of meeting the required design storm, the combination of channel, bank and flood-plain configuration 

can be considered in the diversion design. 

 One commenter recommended changing the word "diversion channel" to "conveyance structure" in proposed 

Section 816.83(b) and that the word "channel" be deleted. These changes would accommodate the use of other types 

of drainage systems such as lined ditches, conduits and other designs as discussed by OSM in the preamble to the 

proposed rule. OSM disagrees. For consistency with other rules, the words "diversion channels" have been retained in 

the final rule. This language is not, however, intended to limit the use of lined ditches or other designs, provided the 

standards of Section 816.43 are met. 

 

SECTION 816.83(b) 

 Final Section 816.83(b) provides for surface area stabilization through revegetation of disturbed areas. Diversions 

may be riprapped or lined with alternative materials rather than being vegetated. The use of alternative materials as 

diversion liners follows the requirements of Section 816.43 and increases the design engineer's capacity to meet 

particular site needs. Because some confusion resulted from the question on whether diversions were part of the 

disturbed area and, therefore, must be vegetated, this section has been reworded to clarify this point. The final rule 

incorporates the provisions of proposed Section 816.83(c). 

 A commenter pointed out the inconsistency in proposed Section 816.83(c) with respect to diversion ditches being 

part of a disturbed area for which there is a vegetation requirement, but for which there is an alternative to 

revegetation. Another commenter stated that diversion channels must be stabilized and that an alternative to 

riprapping and vegetation must be controlled by the regulatory authority. 

 OSM has accepted these comments and changed the final rule to avoid misinterpretations. The change clarifies that 

diversion channels may be riprapped or otherwise protected rather than revegetated. The method of lining the ditches 

must be part of the diversion design submitted as part of the permit application. Approval of the permit application by 

the regulatory authority and issuance of the permit constitutes approval of the diversion liner. 

 A commenter proposed adding to the provisions of the rule that temporary refuse piles use some other procedures 

approved by the regulatory authority to minimize surface erosion. The commenter pointed out that revegetation and 

adding a topsoil layer to a temporary pile is not very feasible. The commenter advocated that some type of alternative 

slope protection procedures should be allowed, particularly if the coal mine waste is to be disposed of in the pit prior 

to reclamation. 

 The final rule provides that slope protection must be provided to minimize erosion. This slope protection can 

consist of a variety of techniques and need not include topsoiling and revegetation during construction or of 

temporary piles, although a temporary cover may be appropriate in some circumstances. The refuse pile need not be 

fully revegetated in accordance with Sections 816.111-816.116 and 817.111-817.116 until completion of 

construction. Thus, the commenter's suggestion is allowed under the final rule and no further change is required. 

 Proposed Section 816.83(d) would have included a provision requiring the control and minimization of water 

pollution through reference to the hydrologic balance protection provision of Section 816.41. Since Section 816.41 
will apply by its own terms to all parts of the permit area, including refuse piles, it is not necessary to include 

reference to it in Section 816.83. Proposed Section 816.83(d) has, therefore, not been adopted in the final rule. No 

substantive change is intended by this deletion. 

 Two commenters urged that reference to existing Sections 816.52 and 816.55 on hydrologic balance should not be 

deleted from Section 816.83(d) because they apply to all operations. The commenter noted that OSM cannot ignore 

the requirement of Section 816.42(a), that all surface drainage from disturbed areas must pass through sediment 

ponds until water quality standards are met unless an exemption is granted under Section 816.42(a)(3). A State 

regulatory authority felt OSM was exempting the coal mine waste discharge from the specific provisions of Sections

816.42 and 816.46 and objected to this provision. 

 OSM agrees that proposed Section 816.83(d) was misleading by referring to one section on protection of the 

hydrologic balance and not to other applicable sections. Each of these sections is applicable to refuse piles by their 

own terms and therefore need not be listed in this section as well. Deletion of reference to only one of the applicable 

sections should help eliminate this confusion. 

 One commenter felt that coal mine waste materials should not be placed in locations which could cause significant 

degradation of the hydrologic regime. 

 OSM agrees. This concern is recognized in Section 816.41, in which material placement practices are listed among 

aspects of hydrologic protection requiring consideration. Also, the reference to MSHA Sections 77.214 and 77.215 

includes other practices to achieve this objective. 

 

SECTION 816.83(c) 

 Final Section 816.83(c) provides standards for the placement of coal mine waste materials in refuse piles. It 

includes requirements from proposed Section 816.85. 

 Several commenters questioned the deletion of the 90-percent compaction requirement in previous Section

816.85(c) from the proposed rule. One commenter took issue with the change because, in the commenter's 

estimation, the 90-percent dry density standard helps to achieve not only stability, but the prevention of spontaneous 

combustion, as well as goals indicated by Congress in the legislative history of the Act. The commenter felt that 

consideration of difficulty in testing should not be weighed against the public safety. Another commenter indicated 

that the 90-percent compaction figure should be retained and he believed the reason for the change in the requirement 

is that the coal companies are not able to actually achieve this level of compaction. One commenter agreed with 

dropping the 90-percent compaction requirement, but called for a statement of proof that the compaction conforms 

with the degree of compaction assumed in the design analysis of the structure. 

 The comments suggesting retention of the 90-percent dry density compaction standard have not been accepted. 

Heterogeneity of coal mine waste material resulting from variations in coal mining techniques, coal cleaning, 

processes, and coal lithology renders meaningless the application of standard compaction measures designed primarily 

for comparatively homogeneous construction materials. Change in character of the coal, coal inclusions, roof rock, 

and bottom strata from coal bed to coal, in a single coal bed, and even within individual mine production sections, 

causes a wide range of physical and chemical properties of the mined product. Hardness, angularity, particle size, 

compressive strength, shear strength, and moisture content variations within the waste dictate the prescription of 

general objectives in consolidation practices rather than the setting of a precise standard which would not consider 

the characteristics of the material being disposed of. 

 While the potential variations in materials' properties and testing difficulties render a nationally established 

numerical compaction standard nearly meaningless, these factors can be considered on a case-by-case basis and 

necessary features incorporated in the site-specific design to ensure stability and minimize the potential for 

combustion or the creation of acid-mine drainage. Where a specific compaction level is an important aspect of a 

design, the inspection and certification requirements of Section 816.83(d) will ensure that appropriate tests and/or 
observations are conducted including compaction measurements to support the engineer's certification that the facility 

is being constructed as designed and in accord with the approved plan. 

 

SECTION 816.83(c)(1) 

 Final Section 816.83(c)(1) requires the removal of all vegetative and organic materials from the disposal area prior 

to placement of coal mine waste. Topsoil must be removed, segregated and stored or redisturbuted in accordance 

with Section 816.22. If approved by the regulatory authority, organic material may be used as mulch or may be 

included in the topsoil to control erosion, promote growth of vegetation or increase the moisture retention of the soil. 

Final Section 816.83(c)(1) adopts the requirements of proposed Section 816.85(d). 

 A commenter questioned the requirement to remove all vegetation and organic materials for refuse pile sites. The 

commenter suggested leaving the removal determination to the regulatory authority on a site-by-site basis because in 

some instances the structural integrity need not be affected if not all were removed. The same commenter questioned 

the requirement to remove all topsoil in proposed Section 816.85(d), explaining that in some areas this may be a 

minor operation, but asked what should be done in areas with thick topsoils 20 feet deep or more. 

 Removal of topsoil and organic material is generally consistent with good engineering practices. The requirement 

is also in accord with the provisions of Sections 515 (b)(5), (b)(13), and (b)(22), and 515(f) of the Act. The necessity 

and extent of topsoil removal is set forth in final Section 816.22. Additionally, when disposing of coal mine waste, 

removal of organic material from the disposal area will help lower the amount of combustible material in the fill, help 

avoid the creation of voids within the fill that could lead to spontaneous combustion or production of acid or toxic 

mine drainage, and help ensure the long-term stability of the refuse pile. For these reasons, the commenter's 

suggestion must be rejected. It should be noted that operators must comply with Section 816.83(c)(1), even when it 

may impose obligations in addition to those in Section 77.215(i) which also pertain to the clearance of vegetation. 

 

SECTION 816.83(c)(2) 

 Final Section 816.83(c)(2) requires that the final configuration of the refuse pile be suitable for the approved 

postmining land use. Terraces may be constructed on the outslope of the refuse pile if required for stability, control of 

erosion, conservation of soil moisture, or facilitation of the approved postmining land use. The grade of the outslope 

between terrace benches must not be steeper than 2h:1v (50 percent). 

 No provisions was included in the proposed rule relating to the use of terraces. However, several commenters 

requested that the provisions of Sections 816.71 and 816.72 for the disposal of excess spoil with were also 

appropriate as standards for refuse piles not be deleted from the requirements of the final rule. Section 816.83(c)(2) 

has been included in the final rule in response to these comments. It clarifies the requirements pertaining to the final 

configuration of the refuse pile and the conditions under which terraces may be used. The reader is referred to the 

preamble to the excess spoil disposal rule for additional discussion on the use of terraces. 

 

SECTION 816.83(c)(3) 

 Final Section 816.83(c)(3) prohibits permanent impoundments on the completed refuse pile. Small depressions 

may be allowed by the regulatory authority if they are needed to retain moisture, minimize erosion, create and 

enhance wildlife habitat, or assist revegetation; and if they are not incompatible with the stability of the refuse pile. 

 No provision was included in the proposed rule related to the use of impoundments or depressions on the final 

refuse pile. However, based upon a commenter's request that applicable portions of Section 816.71 continue to apply 

to refuse piles, final Section 816.83(c)(3) has been included in the final rule. The reader is referred to the preamble to 

the excess spoil disposal rule for additional discussion on the use of small depressions. 

 
SECTION 816.83(c)(4) 

 Final Section 816.83(c)(4) requires the final refuse pile to be covered with a minimum of 4 feet of the best 

available non-toxic and non-combustible material, in a manner that does not impede drainage from the underdrains. 

The regulatory authority may allow less than 4 feet of cover material if physical and chemical analyses show favorable 

conditions for revegetation. The final rule continues the requirements of the previous rule, but differs from the 

proposed rule ( Section 816.85(g)), which required that the final surface be covered with materials capable of 

sustaining adequate vegetation and provide environmental protection according to Sections 816.111-816.117. 

 Two commenters contended that the proposed deletion of the 4 feet of cover requirement did not take into 

consideration the vegetation being sustained over the long term. Revegetation must be successful over the long term 

and diverse enough to meet the requirements of Section 515(b)(19) of the Act, according to the commenter. 

Moreover, covering coal mine waste provides material for vegetation, but also provides a cap to prevent percolation 

into the coal mine waste and migration of toxic materials out of it. The commenter asserted that both scientific 

literature and the former rule support the 4 feet of cover requirement. 

 One commenter concurred with the proposed cover and revegetation requirements while another commenter 

agreed with replacing the specific 4-foot cover requirement with the more general statement, "as required to assure 

reclamation." However, continued the commenter, this places a much higher standard of proof upon the operator to 

demonstrate the appropriate depth of cover. 

 The final rule in Section 816.83(c)(4) continues to apply the requirement that a coal refuse pile be covered by 4 

feet of the best available material. Less than 4 feet of cover may be allowed by the regulatory authority if there is a 

demonstration that the pile will meet the revegetation and environmental protection provisions in revised final 

Sections 816.111 through 816.116. This requirement will ensure that the environmental protection required by 

sections 515 (b)(11) and (b)(19) of the Act is provided in every case. 

 The final rule is not intended to require the operator to create borrow areas to obtain cover materials, unless such 

borrow areas are necessary to prevent combustion or ensure that the revegetation requirements are met. However, 

OSM agrees with the commenters that suggested that additional care must be taken when closing a coal mine waste 

disposal facility than for other backfilled areas. Historically, coal mine waste areas that were not properly reclaimed 

were difficult to revegetate and often had a potential for acid or toxic mine drainage. As a general rule, it is in accord 

with good engineering practice to use the best available material as a cover, rather than burying that material within 

the refuse pile. 

 On the other hand, OSM recognizes that in certain circumstances 4 feet of cover may not be necessary to meet the 

environmental protection requirements of the Act. The final rule thus continues the previous rule which sets a cover 

requirement as a general standard, but allows the regulatory authority to consider site-by-site variations. 

 

SECTION 816.83(d) 

 Final Section 816.83(d) establishes requirements for inspection of refuse piles. It requires that a qualified 

registered professional engineer or other qualified professional specialist inspect the fill during construction and the 

engineer certify that the fill has been constructed and maintained as designed and in accordance with the approved 

plan. Appearances of instability and other hazardous conditions must be reported. These inspection requirements 

were proposed in Section 816.82. 

 Minor revisions have been made to the final inspection requirements to parallel similar inspection requirements for 

excess spoil disposal facilities. Among the revisions are the addition of a provision in the opening paragraph that the 

qualified engineer or specialist be experienced in the construction of similar earth and waste structures; revision of the 

requirement for inspections during placement of the waste material (the final rule requires regular inspections to be 

made during placement of fill, but does not provide that placement of fill must be considered a critical construction 

period); addition of provisions requiring photographs of underdrains prior to coverage with coal mine waste; and 
other minor and editorial revisions. The reader is referred to the preamble to the revised final excess spoil rules for 

additional discussion relative to these changes (48 FR 32910, July 19, 1983). 

 A commenter took issue with the statement in the preamble to the proposed rule that the MSHA certification 

under Section 77.215-3(a) may suffice for the inspection findings under this paragraph (47 FR 26601). This 

commenter also stated that as much as 6 months can lapse before the District Manager is required to be notified that a 

hazardous pile has been modified. 

 The statement in the preamble to the proposed rule merely indicated that the same report may be submitted to both 

MSHA and the surface mining regulatory authority with regard to hazards, provided that the report included all 

information required under the surface mining regulatory program. The commenter appears to have misunderstood 

the proposed preamble discussion. No change in the rules has been made in response to this comment. 

 Proposed Section 816.82(a) provided for the inspection of all refuse piles by a qualified registered professional 

engineer or other qualified professional specialist who is under the direct supervision of the responsible qualified 

registered professional engineer. This requirement is included in the first paragraph of final Section 816.81(d). 

 One commenter states that the same refuse pile inspections should be adequate for both MSHA and OSM. 

Requiring similar inspection requirements for both MSHA and OSM reduces duplicative efforts. In addition, 

confusion at the disposal site is reduced with a potential for decreased costs and accidents at the site. 

 Another commenter stated that MSHA does not require qualified persons to inspect refuse piles. MSHA does, 

however, require qualified persons to inspect impoundments of a size which they regulate. 

 OSM recognizes that there is an overlap between the MSHA inspection requirements and the inspection 

requirements of this final rule. The suggestion that OSM accept the MSHA inspection requirements as satisfying the 

requirements under the surface mining regulatory program has not been accepted. The MSHA rules are especially 

concerned with the safety of large impoundments. The relationship between the MSHA inspection requirements for 

impoundments and OSM's rules is addressed in the final rule dealing with impoundments. Because an impounding 

structure is part of an impoundment, the inspection requirements for impoundments will also apply to coal mine waste 

impounding structures. Requirements, in addition to those imposed by MSHA, are appropriate for inspection of 

refuse piles under the surface mining regulatory program. For this reason, final Section 816.83(d) continues to include 

specific requirements related to inspection of refuse piles that may exceed those required by MSHA. 

 Two commenters questioned the meaning of the word "qualified" in relation to the requirement that refuse piles 

shall be inspected by a qualified registered professional engineer or other qualified professional under the direct 

supervision of the responsible qualified registered professional engineer. One commenter wondered what would make 

a person qualified and how the engineer can be called "responsible" when conditions at the mine site are the 

responsibility of the operator. The other commenter contended that the provision for a qualified professional 

specialist to conduct refuse pile inspections is vague without indicating what fields of expertise such a person must 

possess and that requiring such a person to be under the direct supervision of the engineer is not a measure 

establishing much accountability since the engineering profession is not strongly self-policing. 

 The generally accepted meaning of "qualified person" is a person who is reliable and has the necessary background 

and expertise to conduct the necessary inspections. The term "qualified" implies some further qualification beyond the 

normal professional engineering registration. OSM has found through its enforcement activities that some practicing 

registered professional engineers do not have sufficient experience to certify all phases of the design and construction 

of a facility (Tipton, 1981). Therefore, with respect to coal mine waste facilities, the added requirement that the 

engineer not only be a registered professional engineer, but also be experienced in the design of similar earth and 

waste structures is justified. 

 OSM agrees that the operator bears the statutory responsibility for mine-site conditions. The final rule does not 

use the term "responsible" when referring to the engineer. This is not to imply, however, that the engineer does not 
continue to be professionally responsible for any inspections that he or she conducts or that are conducted under his 

or her supervision. 

 One commenter opposed the change in proposed Section 816.82(a) that would allow persons who are not 

engineers to make inspections of coal mine waste fills if they are under the direct supervision of the responsible 

engineer. The expertise and accountability of the professional engineer are cited as critical factors in assuring that the 

design is being implemented. The previous rule allowed such persons to make such inspections only after they were 

first approved by the regulatory authority. The commenter asserted that coal mine waste construction is complex and 

the highest degree of competence is needed in order to adequately perform inspections. The commenter felt that there 

was a need for the regulatory authority to pass upon a person's competence as an inspector. 

 Under previous Section 816.82(a) there were no standards for the regulatory authority to determine whether a 

person who was not a qualified registered engineer was competent to perform inspections of refuse piles. By 

establishing a requirement that the person, who is not an engineer, be a qualified professional specialist and be under 

the engineer's direction, a standard of accountability is established which is better than the previous rule. If the 

regulatory authority is uncertain about the qualifications of a specialist, it may request additional proof of the 

specialist's background and experience. Thus, under final Section 816.83(d) the regulatory authority will decide how 

permit applicants are to demonstrate that specialists are "qualified" and adequately experienced to handle the job. This 

could be done by oral interview, checking references, a written document, reputation or by other means. 

 One commenter thought proposed Section 816.82(a) was vague in requiring a "specialist" without specifying what 

field of expertise is required and in stating that the supervision must be "direct" without clarifying whether on-site 

supervision is required. 

 The final rule has been revised to indicate that the specialist must be experienced in the construction of similar 

earth and waste structures. It does not, however, require actual on-site supervision of the qualified specialist by the 

engineer. The extent of direction or supervision given to the qualified specialist, either on-site or off-site, by the 

engineer will depend upon the scope of the activities conducted by the specialist and the engineer's needs in making 

the required inspection certification. 

 

SECTION 816.83(d)(1) 

 Final Section 816.83(d)(1) provides that inspections shall be at least quarterly throughout construction and during 

critical construction periods. The rule lists a minimum of four critical construction periods when inspections must be 

made: (i) Foundation preparation, including removal of all organic material and topsoil, (ii) placement of underdrains 

and protective filter systems, (iii) installation of surface drainage systems, and (iv) the final graded and revegetated 

facility. Regular inspections must also be made during placement and compaction of coal mine waste material. 

Inspections may terminate when the refuse pile has been final graded and revegetated or at a later time required by the 

regulatory authority. In hazardous situations, more frequent inspections may be required. The final rule generally 

follows proposed Section 816.82(a)(1), except for revisions to more closely parallel similar inspection requirements 

for excess spoil fills; simplification of the language providing for more frequent inspections in hazard situations; and 

extending the inspections until the facility has been revegetated. 

 A commenter suggested adding the words "when appropriate" before the proposed sentence that listed the critical 

construction periods for inspection of the disposal site. The commenter recommended the change because not all of 

the precautions are required in every situation and this suggested language change would provide flexibility to the 

engineer. OSM has not accepted the suggested language because inspections must be made during these stages of 

construction. If for some reason, one of the stages is not part of the construction sequence, it is understood there 

would be no requirement to inspect an aspect not included in the design of the disposal site. 

 Two commenters suggested that requiring inspections during removal of "all" organic material and topsoil implies 

that an inspector must be present for the whole length of those operations. The commenters indicated such a 

requirement is unnecessary and recommended that the word "all" be deleted. They did agree it is important that the 

site be inspected to see that undesirable materials are removed. 
 The provision in proposed Section 816.82(a)(1) was not intended to require that an inspector be present during 

the entire time that organic material and topsoil are being removed. The term "all" is meant to refer to the material 

being removed not the time of inspection. An inspection upon the completion of the clearing, grubbing and topsoil 

removal operation would satisfy this requirement. 

 Another commenter proposed changing the designated critical construction periods by replacing the first period, 

"Removal of all organic material and topsoil," with "Site preparation." The commenter also asked for the deletion of 

inspections during periods of "(iv) placement and compaction of fill materials," and "(v) revegetation." The 

commenter felt that "site preparation" is a more descriptive term than "removal of all organic material and topsoil" 

and that placement of the fill material and revegetation is a continuing process throughout the mining operation 

without a critical construction period, thus making the inspection period length unclear. The commenter believed 

these inspection items should be treated as part of the regulatory authority's general inspection organization plan and 

since the site plan has been approved, the inspections should be by a professional engineer on an "as needed" basis. 

 OSM realizes that many of the operations at a coal mine waste disposal site are of a continuing nature. The final 

rule revises the proposal by requiring regular inspections during placement of waste, but does not require that the 

entire time period be considered a critical construction period. OSM agrees that "site preparation" would be an 

acceptable alternative to the proposed language. To maintain consistency with the rules for disposal of excess spoil, 

however, this change was not accepted. Rather the final rule requires inspection of the foundation preparation, 

including the removal of organic material and topsoil. 

 One commenter, while supporting the addition of a provision allowing the regulatory authority to require more 

inspections if necessary, suggested it be specified that qualified registered professional engineers conduct the 

inspections. Another commenter pointed out that the sentence discussing more frequent inspections for hazardous 

situations is redundant and needs to be improved. A third commenter proposed replacing the word "shall" with "may" 

to give the regulatory authority discretion on requiring more frequent inspections for hazardous situations. 

 The final rule is modified to clarify the language and require that more frequent inspections must be conducted if a 

danger of harm exists to the public health and safety or the environment. The proposed rule was intended to require 

more frequent inspections when necessary. Under this standard, these inspections are required and the suggestion to 

use the discretionary "may" has not been accepted. The final rule places the responsibility for such additional 

inspections on the operator. The regulatory authority will have the flexibility to require more frequent inspections in 

hazardous situations or to require that they be conducted by a registered professional engineer. 

 A commenter proposed deletion of the phrase ". . . or at a later time as required by the regulatory authority" from 

the requirement indicating when inspections may be terminated. The commenter reasoned that, following MSHA's 

lead, there is no requirement for inspections after the pile has been abandoned in accordance with an approved plan. 

The commenter continued by stating that since the plan must cover all aspects of long-term stability, further 

inspection is not necessary. Another commenter wanted clarification of the same sentence to make sure the owner 

was not responsible for long-term maintenance. 

 The purpose of the sentence discussed by the commenter is to reserve flexibility for site inspection at the 

completion of all requirements, or at some later date if necessitated by unusual circumstances or characteristics of a 

particular site. Therefore, the phrase ". . . at a later time" allows for additional inspections as site conditions warrant 

until final bond release after the waste disposal facility is completed or the mine is no longer actively operated. The 

language providing that the regulatory authority may require inspections to continue after final grading and 

revegetation therefore has been adopted in the final rule. 

 A commenter recommended a final inspection one year after the refuse pile has been covered and graded. The 

commenter maintained that a final inspection is necessary to provide a check on the stability and safety of the refuse 

pile and drainage structures. The final rule more clearly requires an inspection of the completed facility after final 

grading and revegetation. No specific time frame is provided, however, for this inspection. In addition, the regulatory 

authority has the authority under the last sentence of the paragraph to require a later inspection if appropriate. 
 A commenter urged that the previous reference to Section 816.24 should be retained in proposed Section

816.82(a)(1) in order to ensure that inspections continue until the refuse pile is capped with topsoil. The commenter 

said this reference would ensure that the final configurations will be capable of sustaining vegetation, diverting runoff 

and will be compatible with natural surroundings. Another commenter pointed out that a statement in the discussion 

of the previous Section 816.82(a) (47 FR 26601) appears to indicate that once a refuse pile is covered with topsoil it 

does not have to be inspected. 

 While the reference to Section 816.24 on topsoil redistribution has been deleted, the final rule includes language 

extending inspections until the facility has been revegetated. The final inspection may be extended beyond this time if 

required by the regulatory authority. 

 

SECTION 816.83(d)(2) 

 Final Section 816.83(d)(2) requires the qualified registered professional engineer to provide the regulatory 

authority with reports certifying that the fill has been constructed and maintained as designed and in accordance with 

the approved plan and 30 CFR Chapter VII. Such reports, which have to be filed promptly after each inspection, must 

describe any apparent instability, structural weakness, and other hazardous conditions. This requirement is derived 

from proposed Section 816.82(a)(3), but has been expended for clarity. 

 The requirements of proposed Section 816.82(a)(2), which would have required observations necessary to 

evaluate the potential hazard to human life and property and verify that construction and maintenance are occurring in 

accordance with the approved plan, has not been adopted in the final rule. These requirements are implicit in the 

requirements of final Section 816.83(d)(2). 

 One commenter questioned the deletion of the requirement of the previous rule to conduct tests as may be 

necessary to evaluate compliance with the approved plan. 

 While the final rule does not include the language of the previous rule, necessary observations and tests have to be 

conducted to support the engineer's certification of the inspection. The engineer's certification of the inspection is a 

feature that was not included in the previous rule. Such a certification will have to be supported by any necessary 

observations and/or tests. Thus, the same language included in the previous rule is not necessary in this final rule to 

ensure that observations and tests are conducted where necessary. 

 Another commenter disputed the deletion in the proposed rule of the requirement in previous Section

816.82(a)(2), which provided for an inspection of the removal of all organic material and topsoil. The commenter 

urged that the final rule include such a provision. 

 The final rule does include requirements for inspection at this stage of construction. Removal of organic material 

and topsoil is considered a critical construction period under Section 816.83 (d)(1) of the final rule. An inspection of 

each critical construction period and submission of a certified report on the inspection results is required. 

 Two commenters recommended that in proposed Section 816.82(a)(3), the qualified professional specialist be 

allowed to certify the inspection reports on the ground that this person is under the supervision of a responsible 

registered professional engineer. The commenters believed this change would provide uniformity between this 

paragraph and Section 816.82(a), which allows inspection by a qualified professional specialist, and also they said the 

registered engineer is liable for his subordinates' actions. 

 The qualified specialist, who is in the position by reason of training or experience or a combination of both, should 

be capable of performing the inspection duties under the direction of the qualified registered professional engineer. 

The qualified specialist may sign the inspection report as the person doing the inspection but it ultimately must be 

certified by the qualified registered professional engineer with whom inspection responsibilities rest. Imposing a 

certification responsibility on qualified registered professional engineers, rather than on specialists, adds further 

assurance that environmental protection performance standards are satisfied. 
 Another commenter called for deletion of proposed Section 816.82(a)(3) on certification of the inspection findings 

because the MSHA rules at Section 77.215-3(a) require inspection and certification also. The commenter pointed out 

that the MSHA rules only require such certification for those refuse piles. The commenter seemed to indicate the 

procedures in Section 816.82(a)(3) would be very costly and not necessary in most refuse piles. 

 This suggestion has been rejected. Proposed Section 816.82(a)(3) is retained as final Section 816.83(d)(2) because 

the provision is needed to assure continued stability of all refuse piles, and protection of the health and safety of 

people in mining communities. 

 

SECTION 816.83(d)(3) 

 Final Section 816.83(d)(3) requires that the certified report also include color photographs of the underdrain and 

sets the specific conditions for those photos. The final rule contains provisions similar to those included for excess 

spoil fills. 

 Two commenters recommended that the certification of the refuse pile include a color photographic record of the 

construction of underdrain system such as was proposed in Section 816.71(a)(4) for excess spoil fills. The 

photographic record would provide proof of construction of the system in accordance with the rules because the 

system would be inaccessible for inspection once it is covered with coal mine waste. In the opinion of one of the 

commenters, the underdrain system for a refuse pile is as critical as that for an excess spoil fill. 

 The suggestions from these two commenters have been accepted and incorporated in final Section 816.83(d)(3), 

which requires a color photographic record of underdrain construction and certification that the phases of refuse pile 

construction proceeded in accordance with the design and of the plan approved under Section 780.25 of this chapter. 

Photographs provide a valuable visual record of the construction history, since the drain system, once covered, 

cannot be visually examined again. Photographic documentation is currently used on most large construction projects 

and should not present special problems for the mining industry. 

 

SECTION 816.83(d)(4) 

 Final Section 816.83(d)(4) requires that inspection reports be retained at or near the mine site. The final rule is 

adopted from proposed Section 816.82(a)(3). 

 Two commenters suggested keeping inspection records at locations other than the mine site. One suggested copies 

could be kept at various mine offices, such as the engineering department or the foreman's facilities. The other 

maintains that no inconvenience to the inspector should result if the inspection findings are maintained within 

"reasonable access." 

 It was anticipated under the proposed rule that the reports would be retained at the same location where other 

mine records, such as, licenses, approval plans, current permits and authorization to operate, were kept. OSM has 

previously ruled that mine records should be available at or near the mine site. Final Section 816.83(d)(4) has been 

revised accordingly. 

 One commenter disagreed with OSM reasons for deleting previous Section 816.82(a)(3), which called for the 

consideration during inspections of steepness of slopes, seepage and other visible factors that are indicators of 

potential failures. OSM said the provision required no action, set no standard, was only advisory in nature and 

therefore was unnecessary. The commenter said the previous rule should be retained because it called for proper 

consideration of key indicators and set a standard of adequacy of inspection in scope and depth. The commenter also 

said the adequacy of inspection should be monitored by the regulatory authority review of the inspection report at the 

mine sites. 

 The final rule has been revised to include a requirement that the inspection report include any appearances of 

instability, structural weakness, and other hazardous conditions. This revision should accommodate the commenter's 
concern. Steepness, seepage and other visible factors will still be among those aspects of the inspection that should be 

considered in this regard. Copies of the inspection reports must be sent to the regulatory authority as well as be

maintained at or near the mine site. Thus, they will be reviewed by the regulatory authority under its inspection and 

enforcement responsibilities. 

 

SECTION 816.84 - COAL MINE WASTE: IMPOUNDING STRUCTURES 

 Section 816.84, which was proposed as Section 816.86, contains standards that apply to impounding structures 

that are constructed of coal mine waste or are intended to impound coal mine waste. The requirements of final 

Section 816.84 supplement the general standards of final Section 816.81 and, because impounding structures are 

part of impoundments, supplement the standards of Section 816.49. 

 The introductory paragraph includes requirements from previous Section 816.91(a) and proposed Section

816.86(a). Instead of stating that these rules apply whether the structures were completed before or after adoption of 

the regulatory program, the final rule simply states that it applies to all new and existing coal mine waste impounding 

structures with no change in meaning. There were no comments on this paragraph. 

 Final Section 816.84 combines the requirements from previous Sections 816.91, 816.92 and 816.93 relating to the 

construction of dams made of coal mine waste or used to impound wastes. Proposed Section 816.86 offered two 

different alternatives. Option 1 included performance standards from previous Sections 816.91, 816.92 and 816.93. 

Option 2 deleted the site preparation and diversion ditch requirements and included performance standards from only 

Sections 816.91 and 816.93. The resulting final rule in Section 816.84 combines features of Option 1 and Option 2. 

The discussion in this preamble will refer to Option 1, unless otherwise noted. 

 Several commenters supported Option 2 because they believed that Option 2 provided design flexibility without 

lessening the effectiveness of the rules. Others supported Option 2 because they felt it decreased duplication of rules, 

and relied upon commonly accepted engineering practices. Other commenters supported Option 1, believing that the 

additional requirements of Option 1 would provide definite control of surface water, ensure environmentally sound 

site preparation, and provide a higher level of engineering requirements. 

 One commenter opposed Option 2 because, in the commenter's view, it represented an abdication of the 

responsibility under Section 515(f) of the Act to establish standards and criteria which include engineering and 

technical specifications to regulate the design, location and construction of coal mine waste dams and embankments. 

The commenter said Congress made clear OSM was to promulgate regulations to implement Section 515 of the Act 

and that "the mere reproduction of statutory standards is clearly insufficient." The commenter added that to delete 

engineering and technical specifications on the basis that they are common practices is wrong because the rules are 

intended to mandate such practices in a manner enforceable enough to protect and assure public health and safety. 

Another commenter supported retention of the additional requirements of Option 1, but recommended alternative 

language. 

 The final rule retains the performance requirements in proposed Section 816.86 (c) and (d) concerning site 

preparation and diversion requirements for the impounding structure. Under revised Section 816.49(a), requirements 

for site preparation are applicable to all impoundments and need not be repeated in this rule. For convenience to the 

reader a reference to Section 816.49 (a) and (c) is included in Section 816.84(b). Standards for diversions are 

included in final Section 816.84(c). The specific language adopted in Section 816.84(c) is further discussed later in 

this preamble. 

 One commenter opposed the requirement of proposed Option 1 to remove all organic material from the site of the 

impoundment because the practice can, in some cases, promote runoff. In addition, this person pointed out that 

removal of organic material behind the embankment increases costs while adding nothing to improving water quality 

or structural strength. The commenter recommended site-by-site determinations on removal of materials as there are 

times it may not be practical to remove vegetation from areas covered by the waste if it does not affect the stability 

of the structure. Another commenter suggested that a qualified registered professional engineer would recognize the 

situation where it is necessary. A third commenter objected to this provision in its entirety as being unnecessary. A 
fourth commenter pointed to these provisions as being redundant with other provisions of the chapter, but gave no 

specifics. 

 OSM agrees with the commenters who felt that site preparation is an important feature in the design and 

construction of impounding structures. Final Section 816.49(a) requires that all vegetative and organic materials be 

removed and foundations excavated and prepared to resist failure. Cutoff trenches must be installed if necessary to 

ensure stability. Because the requirements of Section 816.49(a) are applicable to coal mine waste impounding 

structures, the requirement has not been repeated in this rule. 

 One commenter contended that the change from design standards for coal mine waste impoundments to a 

requirement for employment of standard engineering practice is not substantiated by analysis, data or literature. 

 OSM disagrees. As indicated above under "General Comments," the final rules, while emphasizing the use of 

performance standards, continue to use design criteria were deemed appropriate. However, overuse of design 

standards are as likely to result in the underdesign as the overdesign of a structure. The regulatory authority and the 

design engineer are in the best position to ensure that the standards are applied to meet specific site conditions. The 

reader is referred to the additional discussion on this issue in OSM's "Final Environmental Impact Statement, OSM 

EIS-1: Supplement." 

 A commenter stated that the less stringent review of permits by the regulatory authority, coupled with the changes 

in design standards for impounding structures and elimination of related permit information from 30 CFR 780.25(e), 

would increase the uncertainty of adequate designs for coal mine waste impounding structures. 

 OSM has not proposed to change the information requirements of 30 CFR 780.25(e), nor is there any proposal 

related to less stringent review of permits by the regulatory authority. The commenter failed to point out specific 

areas of information loss considered necessary in the permit requirements. Parts 780 and 784 contain special 

information requirements for coal mine waste disposal. These sections include requirements for submittal of relevant 

design information and review of that information by the regulatory authority. No change was made in response to 

this comment. 

 

SECTION 816.84(a) 

 Final Section 816.84(a) prohibits the use of coal mine waste in the construction of impounding structures unless it 

has been demonstrated to the regulatory authority that the stability of such a structure will conform to the 

requirements of Section 816.84 and the use of the coal mine waste will not have a detrimental effect on downstream 

water quality or the environment due to acid seepage through the impounding structure. The stability of the structure 

and the potential impact of acid mine seepage through the impounding structure must be discussed in detail in the 

design plan submitted to the regulatory authority in accordance with 30 CFR 780.25 of the permitting requirements. 

 Final Section 816.84(a) adopts proposed Section 816.86(b) and revises previous Section 816.91(b) which 

concerned the stability of the structure and the downstream detrimental effect of any acid seepage. This proposed rule 

would have deleted the provision in previous Section 816.91(b) which required a demonstration before coal mine 

waste could be used in the construction of an impounding structure that the structure would be stable and the waste 

material would not have a detrimental effect on downstream water quality. The proposed deletion was not adopted 

and the final rule continues to require a demonstration with respect to the potential impacts of the coal mine waste on 

stability and water quality. This can be satisfied through the requirement that the potential impact of acid mine 

seepage through the impounding structure be discussed in detail in the design plan to be submitted to the regulatory 

authority in accordance with Section 780.25. 

 Two commenters took issue with the emphasis on toxic material seepage in an impounding structure. In the 

commenter's view the proposed rule overlooked the importance of stability. 

 As indicated above, the proposal to delete the required demonstration on stability has not been adopted. Thus, the 

operator will have to indicate in detail in the design plan, not only the potential for acid mine seepage, but also the 
stability of the structure. 

 

SECTION 816.84(b) 

 Final Section 816.84(b) requires that each coal mine waste impounding structure, as well as structures intended to 

impound coal mine waste, be designed, constructed and maintained in accordance with Section 816.49 (a) and (c). 

These sections include general and specific requirements applicable to temporary impoundments. It includes 

provisions from proposed Section 816.86(e). The change in the sections referenced in the final rule reflects revisions 

to the final impoundments rule. This provision also explicitly recognizes that impounding structures constructed of or 

impounding coal mine waste may not be retained permanently as part of the approved postmining land use. 

 One commenter objected to proposed changes in the impoundments rule and noted these changes would be made 

applicable to coal mine waste impounding structures as well. OSM has revised the proposed impoundments rules in 

response to comments received on that rule. The reader is referred to the preamble to that rule for additional 

explanation and responses to comments. 

 Another commenter proposed adherence to prudent engineering designs and practices in addition to 

methodologies referenced in previous Section 816.49 (a)(5) and (e) through (i). The commenter said OSM was 

arbitrarily limiting the engineering methodologies to those contained in two U.S. Soil Conservation Service 

publications listed in previous Section 816.49. The commenter felt the exclusion of all other methodologies contained 

in accepted professional engineering texts was unwarranted. 

 The final impoundments rule does not limit engineering methodologies to those included in the referenced 

publications. However, the reference to the two U.S. Soil Conservation Service publications was not arbitrary. The 

legislative history refers to the program administered by the U.S. Department of Agriculture to control erosion in 

rural areas and these two publications are used as guides in construction of impounding structures. These guides 

continue to be viable publications as guidance to the coal industry on appropriate considerations in impoundment 

design. 

 Section 816.49, by reference to 30 CFR 77.216, includes special requirements applicable to large impoundments 

and impounding structures. These are structures which impound water, sediment, or slurry to an elevation of 5 feet or 

more above the upstream toe of the structure and can have a storage volume of 20-acre feet or more; which impound 

water, sediment or slurry to an elevation of 20 feet or more above the upstream toe of the structure; or which are 

determined by the MSHA District Manager to present a hazard to coal miners. These structures must meet special

requirements, including certification by registered engineer that the design of the impounding structure is in 

accordance with current, prudent engineering practices, and requirements for examinations and inspections of the 

structure during construction. 

 One commenter recommended adoption of MSHA requirements for impounding structures in place of the 

requirements of OSM's present rule. 

 The final rule does not rely totally on MSHA's regulations, but does acknowledge areas of overlap and attempts to 

minimize conflict in these areas by cross-referencing MSHA's requirements. In one instance where MSHA does not 

set a specific design event for spillways in its rules, but recommends a 100-year, 6-hour event in its guidelines for 

impoundments and impounding structures, OSM has explicitly adopted that standard. Final Section 816.84(b)(2) 

includes the 100-year, 6-hour design event for spillways of coal mine waste impounding structures meeting the 

criteria of 30 CFR 77.216(a). This addition has been made to assure the safety of the public, taking into account the 

complexity of coal mine waste impounding structures and their potential hazards. 

 

SECTION 816.84(c) 

 Final Section 816.84(c) requires that spillways and outlet works be designed to provide protection against erosion 

and corrosion. Inlets must be protected against blockage. This section includes provisions from proposed Section
816.86(i) and previous Section 816.93(b). No comments were received on this provision and it has been adopted as 

proposed. 

 

SECTION 816.84(d) 

 Final Section 816.84(d) requires that runoff from areas above the disposal facility or runoff from the surface of the 

facility that may cause instability or erosion of the impounding structure must be diverted into stabilized diversion 

channels designed to meet the requirements of Section 816.43 and designed to safely pass the runoff from a 100-year, 

6-hour precipitation event. It includes requirements from proposed Section 816.86(d) and previous Section

816.92(b). 

 The final rule changes the design storm from a 100-year, 24-hour precipitation event, to a 100-year, 6-hour event. 

One commenter opposed changing the design storm in this section, as well as in Section 816.83. The commenter 

believed OSM was in error to give the same reasons for the change in design storm criteria for the design of 

impoundments as it gave for the change in the criteria for diversions above fills. The commenter said the design storm 

event standard for impoundments was more critical due to the problems caused by water infiltration into an 

impounding structure as a result of an inadequately sized channel. This commenter preferred retention of the previous 

100-year, 24-hour design precipitation event rather than the 100-year, 6-hour event. 

 One commenter suggested removal of the design criteria in proposed Section 816.86(d) and reliance on prudent, 

engineering principles in diversion design instead. A second commenter stated that these provisions appear directed 

toward diversions in the Appalachian Region where water impoundments are constructed in valleys with different 

conditions than those found in the Midwest. Another commenter opposed the 100-year, 6-hour precipitation event 

level. This commenter believed that retention of this specific design criteria was unnecessary. A third commenter 

opposed this paragraph on the basis of redundancy. 

 The final rule retains both the minimum design criteria for diversions and the change to the 100-year, 6-hour event. 

This change has been made to be consistent with MSHA requirements. Reliance upon the 100-year, 6-hour event is a 

safety standard that has proven successful. OSM disagrees with the commenter who thought this requirement might 

result in inadequately sized channels. The commenter submitted no data to support this conclusion and OSM has not 

found any support for such a finding. The reader is referred to the preamble discussion on Section 816.83(a)(2) where 

a similar change has been made in relation to the requirements for refuse piles. The basis for the change in that section 

is also relevant to this rule. 

 The design precipitation event is not redundant of other requirements. No diversion requirement is provided for 

noncoal waste impoundments. However, such diversions are appropriate for impoundments constructed of or 

impounding coal mine waste to help prevent instability or erosion of the impounding structure and infiltration of 

excess water into the facility. 

 Another commenter recommended deletion of the last sentence in proposed Section 816.86(d) which required 

sediment control measures be provided at discharge points of diversion ditches before the discharge enters natural 

waters. The commenter felt sediment control was not necessary if the diversion does not carry runoff from disturbed 

areas. Further, the commenter said the hydrology performance standards adequately cover this condition. OSM has 

accepted this comment. The provision for sediment control measures for diversions that do not intercept runoff from 

disturbed areas has not been adopted. 

 

SECTION 816.84(e) 

 Final Section 816.84(e) requires that impounding structures constructed of or impounding coal mine waste shall be 

designed so that at least 90 percent of the water stored during the design precipitation event can be removed within a 

10-day period. It includes requirements from proposed Section 816.86(j) and previous Section 816.93(c). 

 One commenter suggested deleting proposed Section 816.86(j) and substituting a new rule requiring an operator 

to supply a statement on the runoff from the storm for which the structure is designed and the calculations used in 
determining such runoff. The commenter indicated that his recommended language was from 30 CFR 77.216-2(11) 

and recommended that this MSHA rule be adopted to prevent duplication. The commenter cited an example of two 

design precipitation events occurring within days of each other making the requirements of Section 816.86(j) 

impossible to meet. 

 The MSHA rule suggested by the commenter merely requires a statement of the runoff attributable to the storm 

for which the structure is designed and calculations used in determining such runoff. There is no duplication between 

this MSHA requirement and Section 816.84(e). 

 A commenter suggested changing "shall" to "can" in the last phrase of this paragraph to permit the alternative of 

storing water in case of low precipitation periods. This change has been adopted and the final rule revised 

accordingly. 

 

PROPOSED SECTION 816.85(f) 

 Proposed Section 816.85(f) would have allowed variations for the disposal of dewatered fine coal waste (minus 26 

sieve size) with approval of the regulatory authority. OSM has not identified features of the final rule requiring such 

variances. Proposed Section 816.85(f) has, therefore, not been adopted in the final rule. OSM will reconsider this 

deletion if it finds that this conclusion is in error. 

 A commenter questioned whether the allowance of a variance for the disposal of dewatered fine coal mine waste 

would allow for the classification of an impounding structure as a refuse pile. 

 Under the final rule, if a structure which is constructed of coal mine waste impounds water or other liquid or 

semi-liquid material, then it is subject to the impounding structures rule in Section 816.84 and the provisions of 

Section 816.49. If it does not impound water or slurry, then it can be built as a refuse pile in accordance with Section

816.83. 

 

PROPOSED SECTION 816.86(f) 

 Proposed Section 816.86(f) included a requirement that impoundments have an adequate freeboard to protect the 

structure. Previous Section 816.93(a)(1), which required at least 3 feet of design freeboard between the lowest point 

on the embankment crest and the maximum water elevation, has been deleted. In the final rule, freeboard will be 

governed by Section 816.49(a)(4) which requires that impoundments have adequate freeboard to resist overtopping 

by waves and by sudden increases in storage volume. There are current prudent engineering practices for designing 

freeboard height that should be used during design of the structure that would cover this requirement. (Scwab and 

others, 1966, pp. 311-314) 

 One commenter opposed the proposed deletion of the requirement of a maximum of 3 feet of design freeboard in 

previous Section 816.93(a)(1). In the commenter's view, under Section 515(f) of the Act designing standards, such as 

that of the freeboard of 3 feet, are required in the rules. Pointing to the preamble discussion of the former rule (44

FR 15218-19, March 13, 1979), the commenter noted that the requirement was set by the Chief of the Corps of 

Engineers before his concurrence to the rules would be given. Presumably, the commenter said, the same standard 

would be required by the Chief of Engineers today. Another commenter indicated it was essential for OSM to publish 

standards for dam freeboard to prevent cresting of dams. Another commenter argued for a need for defining 

"maximum water elevation" when establishing freeboard. One commenter agreed that the rules should provide 

flexibility in establishing freeboard according to site conditions. 

 The 3-feet freeboard provision is not included in these rules, for which OSM has received the concurrence of the 

Chief of Engineers. OSM disagrees that a specific freeboard should be set. Under final Section 816.49(a)(2), 

impoundments must be designed using current, prudent engineering practices and any design criteria established by 

the regulatory authority. In this context, qualified engineers, working within the stability and storm event criteria will 

be able to determine freeboard requirements without further specification. Because site-specific conditions determine 

the water levels, these determinations need to be made on a site-specific basis. Therefore, national freeboard design is 
inappropriate. Further, the final rule does not include the term "maximum water elevation" and therefore a definition 

for this term has not been included. 

 OSM disagrees with the commenter that felt that Section 515(f) of the Act requires these rules to include a 

specific numerical freeboard limit. These rules are in accord with the requirements of the Corps of Engineers and are 

consistent with the requirements of Section 515(f) of the Act which does not mention freeboard. 

 Another commenter was concerned about the possibility of a storm exceeding the storm event. 

 OSM agrees that the potential impact of a storm exceeding the design storm event should be considered by the 

design engineer. In all but the most extraordinary circumstances, the combination of principal and emergency 

spillways should be able to handle any large storm that does occur. 

 

PROPOSED SECTION 816.86(g) OPTION 1. 

 Proposed Section 816.86(g) would have required impounding structures to have a minimum factor of safety of 

1.5, and a seismic safety factor of 1.2. Equivalent provisions are included in Section 816.49(a)(3), which is applicable 

to impounding structures. The 1.5 safety factor is also a general requirement for all coal mine waste structures in 

Section 816.81(c)(2). 

 Two commenters suggested changing "partial pool" to "design normal pool" because steady state seepage does 

not occur until the water level reaches the normal pool level. In addition, one of the commenters recommended that 

partial pool analysis be only for dams built with a nonporous core, a shell of coal refuse or other material. 

 These comments were accepted and Section 816.49(a)(3) uses the "normal pool" level and not "partial pool." The 

use of the word "design" is not needed to identify the pool level. 

 

SECTION 816.87 - COAL MINE WASTE: BURNING AND BURNED WASTE UTILIZATION 

 All rules relating to burning or burned coal mine waste (previous Sections 816.87 and 816.86) have been 

combined in final Section 816.87. 

 

SECTION 816.87(a) 

 Previous Section 816.86, Coal processing waste: Burning, has been deleted and its provisions have been placed in 

final Section 816.87 as Paragraph (a). This paragraph provides that when extinguishing coal mine waste fires, the 

person who conducts the surface mining activities must follow a plan approved by the regulatory authority and 

MSHA. The plan must ensure that only persons authorized by the operator and who understand the special fire 

extinguishing procedures shall be involved in extinguishing the fire. 

 This paragraph reiterates the requirements of Section 77.215(j), but places the responsibility for plan approval 

jointly upon both agencies. 

 The word "waste" has been inserted between "mine" and "fires" in the first line of Paragraph (a) of the final version 

of Section 816.87 to correct a misprint in the proposed version. Two commenters pointed out this inaccuracy. The 

term should be "coal mine waste fire" to indicate fires in surface deposits and the correction is made in the final rule. 

 

SECTION 816.87(b) 

 Previous Section 816.87, Coal processing waste: Burned waste utilization, has been modified and includes as 

Section 816.87(b). The paragraph sets the conditions and approval process for the plan to remove burning or burned 

coal mine waste from a permitted disposal area. The plan must consider the needs of the local community and be 

approved by the regulatory authority. 
 One commenter suggested inserting the word "permitted" between "a" and "disposal" in proposed Section

816.87(b). This comment has been accepted to clarify that these requirements apply to permitted surface coal mining 

and reclamation operations. 

 Another commenter suggested that the proposed phrase "which may be created by removal" modifying "potential 

hazards" be deleted from proposed Section 816.87(b) since in removal operations there may be hazards which can 

occur other than during the actual removal. This comment has been accepted and the final rule revised accordingly. 

 The same commenter took issue with the requirement in Section 816.87(b) that the disposal plan for burned and 

unburned coal mine waste be certified by a "qualified" registered professional engineer. The commenter contended 

that it would be difficult to find an engineer that would be "qualified" to fight such fires. This comment was accepted 

and the final rule revised by deleting the certification requirement. 

 

SECTION 816.89 - DISPOSAL OF NONCOAL WASTES 

 Final Section 816.89 provides standards for disposal of noncoal wastes at a surface coal mining operation. 

 Final Section 816.89(a) specifies that noncoal mine wastes, such as garbage, lumber and other combustibles 

generated during surface mining activities, must be placed and stored in a controlled manner in a designated portion 

of the permit area. The placement and storage of noncoal mine wastes must be performed so as to ensure that surface 

or ground water is not degraded by leachate or surface runoff, that fires are prevented and that the area remains stable 

and suitable for reclamation and revegetation compatible with the natural surroundings. No comments were received 

on this paragraph and it has been adopted as proposed. 

 Final Section 816.89(b) states that final disposal of noncoal mine wastes must be in a designated site in the permit 

area or a State-approved solid waste disposal area. The site is to be constructed and operated according to sanitary 

landfill principles which include compacting and covering the noncoal waste materials to prevent combustion and 

wind-borne waste. Operation of the disposal site is to be conducted in accordance with all local, State and Federal 

requirements. When the disposal is completed, a minimum of 2 feet of soil cover must be placed over the site, slopes 

stabilized and revegetation accomplished in accordance with Sections 816.111-816.116. 

 Several commenters suggested adding the phrase "or a State approved solid waste disposal area," in Section

816.89(b) to allow an operator to take advantage of controlled commercial or publicly operated solid waste disposal 

facilities within economical haul distance of the mine site. 

 Because these types of noncoal waste generally are comparable to other heavy industrial plant wastes this proposal 

is accepted. Such wastes may consist of worn machine parts, metal debris, lubricant containers, used cable, trash 

paper, worn track parts, spent reagent containers, old batteries, electrical component scrap, etc. A mine in the vicinity 

of an area served by a community trash disposal landfill may well be advised to take advantage of such a service as 

long the practice is approved by the regulatory authority and the local and State agencies responsible for waste 

disposal control. The suggested wording change is incorporated in this rule allowing disposal in approved off-permit 

area solid waste disposal areas where methods of deposition are controlled. 

 A second change from the proposal replaces the sentence in paragraph (b) to allow alternative techniques to 

barriers and to emphasize protection for surface and ground water systems. The language, offered by a commenter, is 

"Disposal sites shall be designed and constructed to ensure that leachate and drainage from the noncoal mine waste 

area does not degrade surface or ground water." The alternative to water barriers selected by the mine operator must 

be approved by the regulatory authority. 

 

SECTION 816.89(c) 

 Final Section 816.89(c) prohibits deposition of noncoal mine waste in a refuse pile or impounding structure or 

within 8 feet of any coal outcrop or coal storage area. No comments were received on this paragraph and it is 

adopted as proposed. 
SECTION 816.89(d) 

 The U.S. Environmental Protection Agency suggested that OSM include a provision that would delineate an 

operator's responsibility for disposal of noncoal mine waste that would be classified as "hazardous" under section 

3001 of the Resource Conservation and Recovery Act (RCRA), Pub. L. 94-580, as amended, and 40 CFR Part 261. 

OSM has added the requested language that provides that notwithstanding OSM's other rules, any "hazardous" 

noncoal mine waste must be handled in accordance with Subtitle C of RCRA and any implementing regulations. 

 As to the relationship of coal mine waste and RCRA, OSM and EPA have undertaken a joint study under Subtitle 

C of RCRA. Until that study is completed, OSM has no responsibility for regulating coal mine waste under Subtitle C 

or RCRA. 

 

REFERENCE MATERIALS 

 Reference materials used to develop these final rules are as follows: 

 Schwab, G. O., Frevert, R. K., and Edminister, T. W. 1966, Soil and water conservation engineering. Second 

edition. The Ferguson Foundation Agricultural Engineering Series. John Wiley & Sons, New York. 683 pp. 

 U.S. Mining Enforcement and Safety Administration, 1975, Engineering and design manual -- coal refuse disposal 

facilities. (Prepared by D'Appolonia Consulting Engineers, Inc., Pittsburgh, Pa.) U.S. Mining Enforcement and Safety

Administration report. 

 U.S. Mining Safety and Health Administration. 1979. Design guidelines for coal refuse piles and water, sediment 

or slurry impoundments and impounding structures. U.S. Department of Labor, Mine Safety and Health 

Administration, IR 1109. 29 pp. 

 

IV. PROCEDURAL MATTERS 

 

National Environmental Policy Act 

 OSM has analyzed the impacts of these final rules in its "Final Environmental Impact Statement OSM EIS-1: 

Supplement" (FEIS) according to Section 102(2)(C) of the National Environmental Policy Act of 1969 (NEPA) (42 

U.S.C. 4332(2)(C)). The FEIS is available in OSM's Administrative Record in Room 5315, 1100 L Street, NW., 

Washington, D.C., or by mail request to Mark Boster, Chief, Branch of Environmental Analysis, Room 134, Interior 

South Building, U.S. Department of the Interior, Washington, DC 20240. This preamble serves as the record of 

decision under NEPA. The following differences are noted between these final rules and the preferred alternative set 

forth in Volume III of the FEIS: 

 1. Final Section 816.81(c) includes a design requirement for a long term static safety factor of 1.5 and requirement 

that the foundation and abutments of a coal mine waste disposal facility must be stable under all conditions of 

construction. Inclusion of these provisions is more environmentally protective than the preferred alternative. 

 2. The provision regarding inspection of coal mine waste disposal facilities has been moved from Section

816.81(e) in the FEIS to Section 816.83(d), for coal refuse piles, and to Section 816.84(b) for impounding structures 

(which references the impoundments rules that contains a similar inspection requirement). This reorganization has no 

environmental effect. 

 3. Final Section 816.81(e) imposes emergency procedures for both "examinations" and inspections. This is more 

protective than the FEIS preferred alternative. 

 4. Section 816.83(c)(5) in the FEIS, requiring revegetation of refuse piles in accordance with Sections

816.111-816.116, is not adopted. This has no environmental effect because the revegetation rules are applicable by 

their own terms. 
 5. Reference to the requirements of Section 77.216, which was contained in the introductory language of Section

816.84 in the FEIS preferred alternative has not been adopted. This has negligible environmental effect because 

Section 816.49(a), which is referenced in Section 816.84(b), references Section 77.216. 

 6. Final Section 816.84(b)(1) adds the requirement that coal mine waste impounding structures may not be 

retained permanently as part of the approved postmining land use. This is more protective than the FEIS preferred 

alternative. 

 7. Final Section 816.84(b)(2) imposes a requirement for coal mine waste impounding structures that meet the 

criteria of Section 77.216 to have spillways that can pass a 100-year, 6-hour precipitation event. This has similar 

impacts as the FEIS preferred alternative because even without such a requirement in OSM rules, it is contained in 

guidelines followed by MSHA in approving plans for impounding structures. 

 8. The general objective in final Section 816.81(a)(5) has been changed to "prevent," rather than "minimize the 

potential for," combustion as was set forth in the FEIS preferred alternative. This language from the previous rule is 

part of the no action/minimum action alternative in the FEIS. 

 9. A new provision Section 816.89(d) has been added regarding the disposal of noncoal mine waste classified as 

"hazardous" under RCRA. This provision has no environmental effect because RCRA applies to such waste 

regardless of OSM's rules. 

 10. The definition of the term "refuse pile" has been revised from the FEIS preferred alternative to provide that a 

deposit does not qualify as a refuse pile if it impounds a liquid or semi-liquid material. This revised definition is more 

protective than the FEIS preferred alternative to the extent it clarifies when deposits of coal waste are subject to the 

provision of Section 816.83 or Section 816.84. 

 11. The word "sediment" is not included in the final definition of "impounding structure," as was included in the 

FEIS preferred alternative. This will have no environmental effect because when sediment is impounded in a 

semi-liquid state, the structure would continue to qualify as an impounding structure. 

 12. A number of other editorial changes have been made which have little environmental effect. 

 

Federal Paperwork Reduction Act 

 The information collection requirements in 30 CFR Parts 816 and 817 were approved by the Office of 

Management and Budget (OMB) under 44 U.S.C. 3507 and assigned clearance numbers 1029-0047 and 1029-0048. 

This approval is codified under the new Sections 816.10 and 817.10. The information required by 30 CFR Parts 816 

and 817 would be used by the regulatory authority in monitoring and inspecting surface and underground mining 

activities to ensure that they are conducted in a manner which preserves and enhances environmental and other values 

under the Act. The information required by 30 CFR Parts 816 and 817 is mandatory. 

 

Determinations Under Executive Order 12291 and the Regulatory Flexibility Act 

 The Department of the Interior (DOI) has examined these rules according to the criteria of Executive Order 12291 

(February 17, 1981). OSM has determined that these are not major rules and do not require a regulatory impact 

analysis because they will impose only minor costs on the coal industry and coal consumers. In addition, the 

regulations emphasize the use of performance standards instead of design criteria which will allow operators to utilize 

the most cost-effective means of achieving the performance standards. 

 The DOI has also determined pursuant to the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., that these rules will 

not have a significant economic impact on a substantial number of small entities. The regulations will allow small coal 

operators increased flexibility in meeting performance standards and should especially ease the regulatory authority 

burden on small coal operators in Appalachia. 

 
Approval of Other Agencies 

 OSM has obtained all necessary comments and concurrences from other agencies. Sections 501 (a)(B) and (b) of 

the Act require the written concurrence of the Administrator of the Environmental Protection Agency or regulations 

relating to air or water quality standards promulgated under the Clean Air Act and the Clean Water Act. The 

Administrator of the Environmental Protection Agency has concurred in the issuance of this regulation. Section 

516(a) of the Act requires the written concurrence of the head of the department that administers the Federal Coal 

Mine Health and Safety Act of 1969 -- The Assistant Secretary for Mine Safety and Health, U.S. Department of 

Labor -- in OSM regulations concerning the surface effects of underground mining. The Assistant Secretary for Mine 

Safety and Health has concurred in the issuance of this regulation. As stated earlier, OSM has also received the 

written concurrence from the Chief of Engineers that is required under Section 515(f) of the Act. 

 

LIST OF SUBJECTS 

 

30 CFR Part 701 

 Coal mining, Surface mining, Underground mining. 

 

30 CFR Part 816

 Coal mining, Environmental protection, Reporting and recordkeeping requirements, Surface mining. 

 

30 CFR Part 817 

 Coal mining, Environmental protection, Reporting and recordkeeping requirements, Underground mining. 

 Accordingly, 30 CFR Parts 701, 816 and 817 are amended as set forth herein. 

Dated: September 15, 1983. 

Joy R. Gwaltney Acting Deputy Assistant Secretary, Energy and Minerals. 

PART 701 -- PERMANENT REGULATORY PROGRAM 

 1. In Section 701.5 the definitions listed below are added alphabetically to read as follows: 

SECTION 701.5 - DEFINITIONS. 

 

* * * * * 

COAL MINE WASTE means coal processing waste and underground development waste. 

 

* * * * * 

IMPOUNDING STRUCTURE means a dam, embankment or other structure used to impound water, slurry, or other 

liquid or semi-liquid material. 

 

* * * * * 

REFUSE PILE means a surface deposit of coal mine waste that does not impound water, slurry, or other liquid or 

semi-liquid material. 

 

* * * * * 
 2. In Section 701.5, the definition of coal processing waste is revised to read as follows: 

SECTION 701.5 - DEFINITIONS. 

 

* * * * * 

COAL PROCESSING WASTE means earth materials which are separated and wasted from the product coal during 

cleaning, concentrating, or other processing or preparation of coal. 

 

* * * * * 

PART 816 -- PERMANENT PROGRAM PERFORMANCE STANDARDS -- SURFACE MINING 

ACTIVITIES 

 3. Section 816.81 is revised to read as follows: 

SECTION 816.81 - COAL MINE WASTE: GENERAL REQUIREMENTS. 

(a) General. All coal mine waste shall be placed in new or existing disposal areas within a permit area, which are 

approved by the regulatory authority for this purpose. Coal mine waste shall be placed in a controlled manner to -- 

(1) Minimize adverse effects of leachate and surface-water runoff on surface and ground water quality and 

quantity; 

(2) Ensure mass stability and prevent mass movement during and after construction; 

(3) Ensure that the final disposal facility is suitable for reclamation and revegetation compatible with the 

natural surroundings and the approved postmining land use; 

(4) Not create a public hazard; and 

(5) Prevent combustion. 

(b) Coal mine waste material from activities located outside a permit area may be disposed of in the permit area only 

if approved by the regulatory authority. Approval shall be based upon a showing that such disposal will be in 

accordance with the standards of this section. 

(c) Design certification. 

(1) The disposal facility shall be designed using current, prudent engineering practices and shall meet any 

design criteria established by the regulatory authority. A qualified registered professional engineer, experienced in the 

design of similar earth and waste structures, shall certify the design of the disposal facility. 

(2) The disposal facility shall be designed to attain a minimum long-term static safety factor of 1.5. The 

foundation and abutments must be stable under all conditions of construction. 

(d) Foundation. Sufficient foundation investigations, as well as any necessary laboratory testing of foundation 

material, shall be performed in order to determine the design requirements for foundation stability. The analyses of the 

foundation conditions shall take into consideration the effect of underground mine workings, if any, upon the stability 

of the disposal facility. 

(e) Emergency procedures. If any examination or inspection discloses that a potential hazard exists, the regulatory 

authority shall be informed promptly of the finding and of the emergency procedures formulated for public protection 

and remedial action. If adequate procedures cannot be formulated or implemented, the regulatory authority shall be 

notified immediately. The regulatory authority shall then notify the appropriate agencies that other emergency 

procedures are required to protect the public. 

(f) Underground disposal. Coal mine waste may be disposed of in underground mine workings, but only in 

accordance with a plan approved by the regulatory authority and MSHA under Section 784.25 of this chapter. 
SECTION 816.82 [Removed] 

 4. Section 816.82 is removed. 

 5. Section 816.83 is revised to read as follows: 

SECTION 816.83 - COAL MINE WASTE: REFUSE PILES. 

 Refuse piles shall meet the requirements of Section 816.81, the additional requirements of this section, and the 

requirements of Sections 77.214 and 77.215 of this title. 

(a) Drainage control. 

(1) If the disposal area contains springs, natural or manmade water courses, or wet weather seeps, the design 

shall include diversions and underdrains as necessary to control erosion, prevent water infiltration into the disposal 

facility and ensure stability. 

(2) Uncontrolled surface drainage may not be diverted over the outslope of the refuse piles. Runoff from the 

areas above the refuse pile and runoff from the surface of the refuse pile shall be diverted into stabilized diversion 

channels designed to meet the requirements of Section 816.43 to safely pass the runoff from a 100-year, 6-hour 

precipitation event. Runoff diverted from undisturbed areas need not be commingled with runoff from the surface of 

the refuse pile. 

(3) Underdrains shall comply with the requirements of Section 816.71(f)(3). 

(b) Surface area stabilization. Slope protection shall be provided to minimize surface erosion at the site. All 

disturbed areas, including diversion channels that are not riprapped or otherwise protected, shall be revegetated upon 

completion of construction. 

(c) Placement. 

(1) All vegetative and organic materials shall be removed from the disposal area prior to placement of coal 

mine waste. Topsoil shall be removed, segregated and stored or redistributed in accordance with Section 816.22. If 

approved by the regulatory authority, organic material may be used as mulch, or may be included in the topsoil to 

control erosion, promote growth of vegetation or increase the moisture retention of the soil. 

(2) The final configuration of the refuse pile shall be suitable for the approved postmining land use. Terraces 

may be constructed on the outslope of the refuse pile if required for stability, control or erosion, conservation of soil 

moisture, or facilitation of the approved postmining land use. The grade of the outslope between terrace benches shall 

not be steeper than 2h:1v (50 percent). 

(3) No permanent impoundments shall be allowed on the completed refuse pile. Small depressions may be 

allowed by the regulatory authority if they are needed to retain moisture, minimize erosion, create and enhance 

wildlife habitat, or assist revegetation, and if they are not incompatible with stability of the refuse pile. 

(4) Following final grading of the refuse pile, the coal mine waste shall be covered with a minimum of 4 feet 

of the best available, nontoxic and noncombustible material, in a manner that does not impede drainage from the 

underdrains. The regulatory authority may allow less than 4 feet of cover material based on physical and chemical 

analyses which show that the requirements of Sections 816.111-816.116 will be met. 

(d) Inspections. A qualified registered professional engineer, or other qualified professional specialist under the 

direction of the professional engineer, shall inspect the refuse pile during construction. The professional engineer or 

specialist shall be experienced in the construction of similar earth and waste structures. 

(1) Such inspections shall be made at least quarterly throughout construction and during critical construction 

periods. Critical construction periods shall include at a minimum: 

(i) Foundation preparation including the removal of all organic material and topsoil; 

(ii) placement of underdrains and protective filter systems; 

(iii) installation of final surface drainage systems; and 
(iv) the final graded and revegetated facility. Regular inspections by the engineer or specialist shall 

also be conducted during placement and compaction of coal mine waste materials. More frequent inspections shall be 

conducted if a danger of harm exists to the public health and safety or the environment. Inspections shall continue 

until the refuse pile has been finally graded and revegetated or until a later time as required by the regulatory 

authority. 

(2) The qualified registered professional engineer shall provide a certified report to the regulatory authority 

promptly after each inspection that the refuse pile has been constructed and maintained as designed and in accordance 

with the approved plan and this chapter. The report shall include appearances of instability, structural weakness, and 

other hazardous conditions. 

(3) The certified report on the drainage system and protective filters shall include color photographs taken 

during and after construction, but before underdrains are covered with coal mine waste. If the underdrain system is 

constructed in phases, each phase shall be certified separately. The photographs accompanying each certified report 

shall be taken in adequate size and number with enough terrain or other physical features of the site shown to provide 

a relative scale to the photographs and to specifically and clearly identify the site. 

(4) A copy of each inspection report shall be retained at or near the minesite. 

SECTIONS 816.85 and 816.86 [Removed] 

 6. Sections 816.85 and 816.86 are removed. 

 7. Sections 816.91, 816.92, and 816.93 are combined, redesignated as new Section 816.84 and revised to read as 

follows: 

SECTION 816.84 - COAL MINE WASTE: IMPOUNDING STRUCTURES. 

 New and existing impounding structures constructed of coal mine waste or intended to impound coal mine waste 

shall meet the requirements of Section 816.81. 

(a) Coal mine waste shall not be used for construction of impounding structures unless it has been demonstrated to 

the regulatory authority that the stability of such a structure conforms to the requirements of this part and the use of 

coal mine waste will not have a detrimental effect on downstream water quality or the environment due to acid 

seepage through the impounding structure. The stability of the structure and the potential impact of acid mine 

seepage through the impounding structure shall be discussed in detail in the design plan submitted to the regulatory 

authority in accordance with Section 780.25 of this chapter. 

(b)(1) Each impounding structure constructed of coal mine waste or intended to impound coal mine waste shall be 

designed, constructed and maintained in accordance with Section 816.49 (a) and (c). Such structures may not be 

retained permanently as part of the approved postmining land use. 

(2) If an impounding structure constructed of coal mine waste or intended to impound coal mine waste 

meets the criteria of Section 77.216(a) of this title, the combination of principal and emergency spillways shall be able 

to safely pass the 100-year, 6-hour design participation event. 

(c) Spillways and outlet works shall be designed to provide adequate protection against erosion and corrosion. Inlets 

shall be protected against blockage. 

(d) Drainage control. Runoff from areas above the disposal facility or runoff from surface of the facility that may 

cause instability or erosion of the impounding structure shall be diverted into stabilized diversion channels designed to 

meet the requirements of Section 816.43 and designed to safely pass the round off from a 100-year, 6-hour design 

precipitation event. 

(e) Impounding structures constructed of or impounding coal mine waste shall be designed so that at least 90 percent 

of the water stored during the design precipitation event can be removed within a 10-day period. 
 8. Section 816.87 is revised to read as follows: 

SECTION 816.87 - COAL MINE WASTE: BURNING AND BURNED WASTE UTILIZATION. 

(a) Coal mine waste fires shall be extinguished by the person who conducts the surface mining activities, in 

accordance with a plan approved by the regulatory authority and the Mine Safety and Health Administration. The 

plan shall contain, at a minimum, provisions to ensure that only those persons authorized by the operator, and who 

have an understanding of the procedures to be used, shall be involved in the extinguishing operations. 

(b) No burning or burned coal mine waste shall be removed from a permitted disposal area without a removal plan 

approved by the regulatory authority. Consideration shall be given to potential hazards to persons working or living 

in the vicinity of the structure. 

SECTION 816.88 [Removed] 

 9. Section 816.88 is removed. 

 

10. Section 816.89 is revised to read as follows: 

SECTION 816.89 - DISPOSAL OF NONCOAL MINE WASTES. 

(a) Noncoal mine wastes including, but not limited to grease, lubricants, paints, flammable liquids, garbage, 

abandoned mining machinery, lumber and other combustible materials generated during mining activities shall be 

placed and stored in a controlled manner in a designated portion of the permit area. Placement and storage shall 

ensure that leachate and surface runoff do not degrade surface or ground water, that fires are prevented, and that the 

area remains stable and suitable for reclamation and revegetation compatible with the natural surroundings. 

(b) Final disposal of noncoal mine wastes shall be in a designated disposal site in the permit area or a State-approved 

solid waste disposal area. Disposal sites in the permit area shall be designed and constructed to ensure that leachate 

and drainage from the noncoal mine waste area does not degrade surface or underground water. Wastes shall be 

routinely compacted and covered to prevent combustion and wind-borne waste. When the disposal is completed, a 

minimum of 2 feet of soil cover shall be placed over the site, slopes stabilized, and revegetation accomplished in 

accordance with Sections 816.111-816.116. Operation of the disposal site shall be conducted in accordance with all 

local, State and Federal requirements. 

(c) At no time shall any noncoal mine waste be deposited in a refuse pile or impounding structure, nor shall an 

excavation for a noncoal mine waste disposal site be located within 8 feet of any coal outcrop or coal storage area. 

(d) Notwithstanding any other provision in this chapter, any noncoal mine waste defined as "hazardous" under section 

3001 of the Resource Conservation and Recovery Act (RCRA) (Pub. L. 94-580, as amended) and 40 CFR Part 261 

shall be handled in accordance with the requirements of Subtitle C of RCRA and any implementing regulations. 

PART 817 -- PERMANENT PROGRAM PERFORMANCE STANDARDS -- UNDERGROUND MINING 

ACTIVITIES 

 11. Section 817.81 is revised to read as follows: 

SECTION 817.81 - COAL MINE WASTE: GENERAL REQUIREMENTS. 

(a) General. All coal mine waste shall be placed in new or existing disposal areas within a permit area, which are 

approved by the regulatory authority for this purpose. Coal mine waste shall be placed in a controlled manner to -- 
(1) Minimize adverse effects of leachate and surface-water runoff on surface and ground water quality and 

quantity; 

(2) Ensure mass stability and prevent mass movement during and after construction; 

(3) Ensure that the final disposal facility is suitable for reclamation and revegetation compatible with the 

natural surroundings and the approved postmining land use; 

(4) Not create a public hazard; and 

(5) Prevent combustion. 

(b) Coal mine waste materials from activities located outside a permit area may be disposed of in the permit area only 

if approved by the regulatory authority. Approval shall be based upon a showing that such disposal will be in 

accordance with the standards of this section. 

(c) Design certification. 

(1) The disposal facility shall be designed using current, prudent engineering practices and shall meet any 

design criteria established by the regulatory authority. A qualified registered professional engineer, experienced in the 

design of similar earth and waste structures, shall certify the design of the disposal facility. 

(2) The disposal facility shall be designed to attain a minimum long-term static safety factor of 1.5. The 

foundation and abutments must be stable under all conditions of construction. 

(d) Foundation. Sufficient foundation investigations, as well as any necessary laboratory testing of foundation 

material, shall be performed in order to determine the design requirements for foundation stability. The analyses of the 

foundation conditions shall take into consideration the effect of underground mine workings, if any, upon the stability 

of the disposal facility. 

(e) Emergency procedures. If any examination or inspection discloses that a potential hazard exists, the regulatory 

authority shall be informed promptly of the finding and of the emergency procedures formulated for public protection 

and remedial action. If adequate procedures cannot be formulated or implemented, the regulatory authority shall be 

notified immediately. The regulatory authority shall then notify the appropriate agencies that other emergency 

procedures are required to protect the public. 

(f) underground disposal. Coal mine waste may be disposed of in underground mine workings, but only in accordance 

with a plan approved by the regulatory authority and MSHA under Section 784.25 of this chapter. 

SECTION 817.82 [Removed] 

 12. Section 817.82 is removed. 

 13. Section 817.83 is revised to read as follows: 

SECTION 817.83 - COAL MINE WASTE: REFUSE PILES. 

 Refuse piles shall meet the requirements of Section 817.81, the additional requirements of this section, and the 

requirements of Sections 77.214 and 77.215 of this title. 

(a) Drainage control. 

(1) If the disposal area contains springs, natural or manmade water courses, or wet weather seeps, the design 

shall include diversions and underdrains as necessary to control erosion, prevent water infiltration into the disposal 

facility and ensure stability. 

(2) Uncontrolled surface drainage may not be diverted over the outslope of the refuse pile. Runoff from 

areas above the refuse pile and runoff from the surface of the refuse pile shall be diverted into stabilized diversion 

channels designed to meet the requirements of Section 817.43 to safely pass the runoff from a 100-year, 6-hour 
precipitation event. Runoff diverted from undisturbed areas need not be commingled with runoff from the surface of 

the refuse pile. 

(3) Underdrains shall comply with the requirements of Section 817.71(f)(3). 

(b) Surface area stabilization. Slope protection shall be provided to minimize surface erosion at the site. All 

disturbed areas, including diversion channels that are not riprapped or otherwise protected, shall be revegetated upon 

completion of construction. 

(c) Placement. 

(1) All vegetative and organic materials shall be removed from the disposal area prior to placement of coal 

mine waste. Topsoil shall be removed, segregated and stored or redistributed in accordance with Section 817.22. If 

approved by the regulatory authority, organic material may be used as mulch or may be included in the topsoil to 

control erosion, promote growth of vegetation or increase the moisture retention of the soil. 

(2) The final configuration of the refuse pile shall be suitable for the approved postmining land use. Terraces 

may be constructed on the outslope of the refuse pile if required for stability, control of erosion, conservation of soil 

moisture, or facilitation of the approved postmining land use. The grade of the outslope between terrace benches shall 

not be steeper than 2h:1v (50 percent). 

(3) No permanent impoundments shall be allowed on the completed refuse pile. Small depressions may be 

allowed by the regulatory authority if they are needed to retain moisture, minimize erosion, create and enhance 

wildlife habitat, or assist revegetation, and if they are not incompatible with stability of the refuse pile. 

(4) Following final grading of the refuse pile, the coal mine waste shall be covered with a minimum of 4 feet 

of the best available, nontoxic and noncombustible material, in a manner that does not impede drainage from the 

underdrains. The regulatory authority may allow less than 4 feet of cover material based on physical and chemical 

analyses which show that the requirements of Sections 817.111-817.116 will be met. 

(d) Inspections. A qualified registered professional engineer, or other qualified professional specialist under the 

direction of the professional engineer, shall inspect the refuse pile during construction. The professional engineer or 

specialist shall be experienced in the construction of similar earth and waste structures. 

(1) Such inspection shall be made at least quarterly throughout construction and during critical construction 

periods. Critical construction periods shall include at a minimum: 

(i) Foundation preparation including the removal of all organic material and topsoil; 

(ii) placement of underdrains and protective filter systems; 

(iii) installation of final surface drainage systems; and 

(iv) the final graded and revegetated facility. Regular inspections by the engineer or specialist shall 

also be conducted during placement and compaction of coal mine waste materials. More frequent inspections shall be 

conducted if a danger of harm exists to the public health and safety or the environment. Inspections shall continue 

until the refuse pile has been finally graded and revegetated or until a later time as required by the regulatory 

authority. 

(2) The qualified registered professional engineer shall provide a certified report to the regulatory authority 

promptly after each inspection that the refuse pile has been constructed and maintained as designed and in accordance 

with the approved plan and this chapter. The report shall include appearances of instability, structural weakness, and 

other hazardous conditions. 

(3) The certified report on the drainage system and protective filters shall include color photographs taken during and 

after construction, but before underdrains are covered with coal mine waste. If the underdrain system is constructed 

in phases, each phase shall be certified separately. The photographs accompanying each certified report shall be taken 

in adequate size and number with enough terrain or other physical features of the site shown to provide a relative 

scale to the photographs and to specifically and clearly identify the site. 

(4) A copy of each inspection report shall be retained at or near the minesite. 
SECTIONS 817.85 and 817.86 [Removed] 

 14. Sections 817.85 and 817.86 are removed. 

 15. Sections 817.91, 817.92, and 817.93 are combined, redesignated as new Section 817.84 and revised to read as 

follows: 

SECTION 817.84 - COAL MINE WASTE: IMPOUNDING STRUCTURES. 

 New and existing impounding structures constructed of coal mine waste or intended to impound coal mine waste 

shall meet the requirements of Section 817.81. 

(a) Coal mine waste shall not be used for construction of impounding structures unless it has been demonstrated to 

the regulatory authority that the stability of such a structure conforms to the requirements of this part and the use of 

coal mine waste will not have a detrimental effect on downstream water quality or the environment due to acid 

seepage through the impounding structure. The stability of the structure and the potential impact of acid mine 

seepage through the impounding structure and shall be discussed in detail in the design plan submitted to the 

regulatory authority in accordance with Section 780.25 of this chapter. 

(b) (1) Each impounding structure constructed of coal mine waste or intended to impound coal mine waste shall be 

designed, constructed and maintained in accordance with Section 817.49 (a) and (c). Such structures may not be 

retained permanently as part of the approved postmining land use. 

(2) If an impounding structure constructed of coal mine waste or intended to impound coal mine waste 

meets the criteria of Section 77.216(a) of this title, the combination of principal and emergency spillways shall be able 

to safely pass the 100-year, 6-hour design precipitation event. 

(c) Spillways and outlet works shall be designed to provide adequate protection against erosion and corrosion. Inlets 

shall be protected against blockage. 

(d) Drainage control. Runoff from areas above the disposal facility or runoff from the surface of the facility that may 

cause instability or erosion of the impounding structure shall be diverted into stabilized diversion channels designed to 

meet the requirements of Section 817.43 and designed to safely pass the runoff from a 100-year, 6-hour design 

precipitation event. 

(e) Impounding structures constructed of or impounding coal mine waste shall be designed so that at least 90 percent 

of the water stored during the design precipitation event can be removed within a 10-day period. 

 16. Section 817.87 is revised to read as follows: 

SECTION 817.87 - COAL MINE WASTE: BURNING AND BURNED WASTE UTILIZATION. 

(a) Coal mine waste fires shall be extinguished by the person who conducts the surface mining activities, in 

accordance with a plan approved by the regulatory authority and the Mine Safety and Health Administration. The 

plan shall contain, at a minimum, provisions to ensure that only those persons authorized by the operator, and who 

have an understanding of the procedures to be used, shall be involved in the extinguishing operations. 

(b) No burning or unburned coal mine waste shall be removed from a permitted disposal area without a removal plan 

approved by the regulatory authority. Consideration shall be given to potential hazards to persons working or living 

in the vicinity of the structure. 
SECTION 817.88 [Removed] 

 17. Section 817.88 is removed. 

 18. Section 817.89 is revised to read as follows: 

SECTION 817.89 - DISPOSAL OF NONCOAL MINE WASTES. 

(a) Noncoal mine wastes including, but not limited to grease, lubricants, paints, flammable liquids, garbage, 

abandoned mining machinery, lumber and other combustible materials generated during mining activities shall be 

placed and stored in a controlled manner in a designated portion of the permit area. Placement and storage shall 

ensure that leachate and surface runoff do not degrade surface or ground water, that fires are prevented, and that the 

area remains stable and suitable for reclamation and revegetation compatible with the natural surroundings. 

(b) Final disposal of noncoal mine wastes shall be in a designated disposal site in the permit area or a State-approved 

solid waste disposal area. Disposal sites in the permit area shall be designed and constructed to ensure that leachate 

and drainage from the noncoal mine waste area does not degrade surface or underground water. Wastes shall be 

routinely compacted and covered to prevent combustion and wind-borne waste. When the disposal is completed, a 

minimum of 2 feet of soil cover shall be placed over the site, slopes stabilized, and revegetation accomplished in 

accordance with Sections 817.111-817.116. Operation of the disposal site shall be conducted in accordance with all 

local, State, and Federal requirements. 

(c) At no time shall any noncoal mine waste be deposited in a refuse pile or impounding structure, nor shall any 

excavation for a noncoal mine waste disposal site be located within 8 feet of any coal outcrop or coal storage area. 

(d) Notwithstanding any other provision to this chapter, any noncoal mine waste defined as "hazardous" under 

Section 3001 of the Resource Conservation and Recovery Act (RCRA) (Pub. L. 94-580, as amended) and 40 CFR 

Part 261 shall be handled in accordance with the requirements of Subtitle C of RCRA and any implementing 

regulations. 

 

(Pub. L. 95-87, 30 U.S.C. 1201 et seq. ) 

[FR Doc. 83-25660 Filed 9-22-83; 8:45 am] 

BILLING CODE 4310-05-M