OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

Search conducted by: Joyce Zweben Scall Page 1 of 5

COALEX STATE INQUIRY REPORT - 276

February 1994

Lowell P. Braxton

Associate Director of Mining

State of Utah Department of Natural Resources

Division of Oil, Gas and Mining

355 West North Temple

3 Triad Center - Suite 350

Salt Lake City, Utah 84180-1203

TOPIC: DEFINITION OF: "CURRENT, PRUDENT ENGINEERING PRACTICES"

INQUIRY: According to the performance standards for roads found in 30 CFR Sec. 

817.150(b)(1), controlling or preventing erosion, siltation, etc. or otherwise stabilizing 

exposed surfaces must be accomplished "in accordance with current, prudent 

engineering practices". Are there any materials that define "prudent engineering 

practices"? 

SEARCH RESULTS: Research was conducted using the COALEX Library and other 

materials available on LEXIS. According to preambles to federal regulations published 

in the Federal Register, the phrase in question was used by OSM beginning in 1983 in 

order to make OSM rules consistent with Mine Safety and Health Administration 

(MSHA) rules. As explained in the preambles, OSM chose to require performance 

standards for roads combined with design of the roads by a registered professional 

engineer following "current, prudent engineering practices" rather than provide detailed 

design and construction criteria. Such rules would provide flexibility to design roads to 

meet site specific requirements. 

Excerpts from two Federal Register notices provide the only identified specific 

definitions of the phrase in question. Further explanation is provided by the history of 

"road" regulation. Excerpts from Interior administrative decisions that mention some 

form of "sound or prudent engineering practices" are enclosed for background. Copies 

of the materials discussed below are attached unless otherwise noted.

MOST RECENT FEDERAL REGISTER NOTICES

48 FR 32910 (JULY 19, 1983). Final rule. Excess spoil fills.
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

Search conducted by: Joyce Zweben Scall Page 2 of 5

"One commenter asserted that the phrase 'accepted engineering practices' is more 

appropriate than 'standard geotechnical engineering method' as used in the proposed 

provision since there are no standard methods of practice established. OSM agrees that 

the suggested phrase is more consistent with actual practice. But in order to make the 

rules more consistent with MSHA rules, OSM has chosen to use MSHA phrasing --

'current, prudent engineering practices.' This phrase, taken from 30 CFR 77.215(i), is 

interpreted to mean practices well-established by engineering principles and widely 

recognized by experts for use in excess spoil disposal, as opposed to practices being 

novel or experimental. The engineer is also responsible for confirming that the practice 

has long-term reliability. Final Sec. 816.71(f)(3) is revised accordingly." 

48 FR 22110 (MAY 16, 1983). Final rules. Roads.

Section 816.151(a). "The phrase 'current, prudent engineering practices' has been 

adopted to make the rules consistent with the rules of the Mine Safety and Health 

Administration in 30 CFR 77.215. It includes practices well-established by engineering 

principles and widely recognized by experts with experience in the subject."

Similar language appears in the 53 FR 45190 (NOVEMBER 8, 1988) notice; see below.

REGULATORY HISTORY

The Regulatory History is taken from 53 FR 45190 (November 8, 1988) Final rules with 

additional information added from individual Federal Register notices.

43 FR 41662 (SEPTEMBER 18, 1978). Proposed permanent rules. Sections 816.31-

816.39/817.31-817.39. Roads and other transportation facilities.

The proposed rules included design, construction, maintenance and reclamation criteria 

in order to control or substantially reduce adverse impacts of coal mine access and haul 

roads associated with surface mining. 

44 FR 14902 (MARCH 13, 1979). Permanent program - final rules.

Section 701.5 defined roads for surface mining operations and established a threetiered road classification system. 

Sections 816.150-816.176/817.150-817.176. Roads. These rules contained "expansive 

and detailed provisions pertaining to road construction, maintenance and postmining 

conditions" and provided specific provisions for each of the classifications. Evaluating 

rules, guidelines and specifications from numerous sources, OSM developed the threetiered classification system by "synthesizing concepts, practices and techniques for the 

design and construction, reconstruction, utilization, maintenance and restoration of 

roads."
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

Search conducted by: Joyce Zweben Scall Page 3 of 5

IN RE: PERMANENT SURFACE MINING REGULATION LITIGATION, No. 79-1144, 

19 ERC (BNA) 1477 (D DC May 16, 1980).

The court remanded the rules for further consideration because the Secretary had not 

given adequate notice that he was considering a classification system. 

[NOTE: Case not included with Report.]

45 FR 51547 (AUGUST 4, 1980).

OSM suspended the permanent program rules for roads. 

[NOTE: Federal Register notice not included with Report.]

47 FR 56 (JANUARY 4, 1982) & 47 FR 16592 (April 16, 1982).

Rules substantially different from the remanded and suspended 1979 rules were 

proposed. 

Option 1 "would establish performance standards for primary roads coupled with 

minimum design criteria known to assure proper performance through testing and past 

practice." 

Option 2 would establish "performance standards for primary roads coupled with a 

requirement of certification by a qualified registered professional engineer that 

acceptable engineering criteria have been incorporated in the design and construction 

in order to ensure compliance."

"Even if Option 2 is selected, OSM would continue to encourage adherence to tested

and recognized design criteria.... A decision not to use design criteria in the rules for 

primary roads should not be construed as reflecting on the validity of these standards. 

These criteria have been developed and tested by long-standing experience, study and 

observation, and should be considered valid and prudent for use in ensuring 

environmental performance in most situations."

[NOTE: 47 FR 56 (JANUARY 4, 1982) is not included with this Report.]

48 FR 22110 (MAY 16, 1983).

The final rules constituted an extensive expansion of the statutory performance 

standards and gave regulatory authorities greater flexibility as to the details of road 

design than did the remanded and suspended 1979 rules. Upon issuance these rules 

were challenged.
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

Search conducted by: Joyce Zweben Scall Page 4 of 5

II. Discussion of the rules adopted. Section 816.151(a). "The phrase 'current, prudent 

engineering practices' has been adopted to make the rules consistent with the rules of 

the Mine Safety and Health Administration in 30 CFR 77.215. It includes practices wellestablished by engineering principles and widely recognized by experts with experience 

in the subject."

IN RE: PERMANENT SURFACE MINING REGULATION LITIGATION II, No. 79-1144, 

slip op. (D DC October 1, 1984).

The court remanded 816.150(a) holding that OSM, in promulgating the classification 

system, violated the Administrative Procedure Act by again not providing adequate 

notice and opportunity to comment. In an amended order filed December 10. 1984, the 

court remanded all of the rules governing roads which were dependent upon the road 

classification system. 

[NOTE: Case not included with Report.]

50 FR 7278 (FEBRUARY 21, 1985).

OSM suspended the rules as well as the definition of road to give OSM an opportunity 

to reconsider all the provisions in the rules affecting the performance standards for 

roads.

[NOTE: Federal Register notice not included with Report.]

52 FR 42258 (NOVEMBER 3, 1987).

OSM proposed rules that were similar to the 1983 remanded and suspended rules. 

53 FR 45190 (NOVEMBER 8, 1988)

"These final rules are a reasonable interpretation of sections 515(b)(17) and (18) of the 

Act."

Sections 780.37(b)/784.24(b). Primary road certification. "This provision is identical to 

the proposed rule and requires that the plans and drawings for each primary road be 

prepared by or under the direction of a qualified registered professional engineer 

experienced in the design and construction of roads. It also requires that the engineer 

certify that the design meets the performance standards of 30 CFR Chapter VII, current 

prudent engineering practices, and any design criteria established by the regulatory 

authority. The phrase 'current, prudent engineering practices' includes those practices 

well-established by engineering principles and widely recognized by experts with 

experience in the subject."
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

Search conducted by: Joyce Zweben Scall Page 5 of 5

Sections 816.150(b)/817.150(b). Performance Standards. "Now after ten years of 

experience, most of that in oversight of approved State programs, which deal with roads 

quite effectively, but through quite varied approaches, OSMRE feels that the expansion 

of the statutory language being promulgated today is fully adequate to ensure that 

statutory standards are met."

ATTACHMENTS

A. 48 FR 32910 (JULY 19, 1983). Final rule. Excess spoil fills. [Excerpts] 

B. 43 FR 41662 (SEPTEMBER 18, 1978). Proposed permanent rules. Sections 

816.31-816.39/817.31-817.39. Roads and other transportation facilities. 

C. 44 FR 14902 (MARCH 13, 1979). Permanent program - final rules. Sections 

816.150-816.176/817.150-817.176. Roads. 

D. 47 FR 16592 (APRIL 16, 1982). Proposed rules. Roads. 

E. 48 FR 22110 (MAY 16, 1983). Final rule. Roads 

F. 52 FR 42258 (NOVEMBER 3, 1987). Proposed rule. Roads. 

G. 53 FR 45190 (NOVEMBER 8, 1988). Final rule. Roads. 

H. NATIONAL WILDLIFE FEDERATION v LUJAN, 31 ERC (BNA) 2034, 21 ELR 

20125 (D DC August 30, 1990). [Excerpts] 

I. NATIONAL WILDLIFE FEDERATION v HODEL, 839 F 2d 694 (DC Cir January 

29, 1988). [Excerpts] 

J. THE PITTSBURGH AND MIDWAY COAL MINING CO. v OSM, Docket Nos. TU 

4-8-P, TU 4-9-P, TU 4 14-R, TU 4-34-R, TU 5-35-R (1985). 

K. Interior Administrative Decision Excerpts from: 

A. Rhonda Lou Energy Corp. #2 v OSM, Docket Nos. CH 9-34-R, CH 9-23 R 

(1979). 

B. PAULA COAL CO., INC. v OSM, Docket No. NX 0-62-P (1980). 

C. STRUNK BROTHERS COAL CO. v OSM, Docket No. NX 3-10-R (1985).

D. CLINCHFIELD COAL CO. v OSM, Docket Nos. NX 5-39-R, NX 5-40-P 

(1987). 

E. Harlan Cumberland Coal Co. v OSM, Docket No. NX 7-86-R (1988). 

F. COLLINS MINING CO. v OSM, 103 IBLA 25, IBLA 87-327 (1988). 

G. THE PITTSBURGH & MIDWAY COAL MINING CO. v OSM, Docket No. 

TU 88-4-R (1988).