Current Regulatory Framework - Coal Waste Impoundments: Risks, Responses, and Alternatives - page 24

surface from underground workings under the impoundment, nor bulkheads that
might be installed within those openings. MSHA may require such monitoring
in individual cases, but there is no regulatory requirement that it do so.
In addition to the monitoring required of the impoundment operator,
inspectors from MSHA and state agencies regularly inspect the impoundment.
The agency inspections satisfy regulatory or policy-required inspection
schedules and have no effect on monitoring requirements the regulations
impose on the operator. The Federal Mine Safety and Health Act requires
MSHA to inspect each impoundment at least twice each year. (If the
impoundment is associated with an underground mine it must be inspected four
times a year.) In addition, qualified persons may be assigned to inspect the
impoundment more often if MSHA deems it necessary.
Reporting Obligations
A report of operations documenting the overall condition and performance
of the refuse impoundment must be submitted to MSHA after construction
begins. The district manager, in the exercise of his discretion, determines the
appropriate frequency case by case. A registered professional engineer must
certify these annual reports, attesting that work accomplished at the facility
during the past 12 months has been done according to the approved plan (30
C.F.R. § 77.216-4).
Observations
The regulatory language in 30 C.F.R. § 77.216 speaks almost exclusively
to the engineering aspects and stability of the embankment. There is little
reference to the engineering design of the basin area or to areas other than the
embankment of the impounding structure.
The impoundment operator and professional engineer are responsible for
providing information about underground mine workings, including the depth
and extent of the workings. However, no regulation or standard industry
practice instructs or guides the engineer in this task, nor is there a procedure for
an independent verification of the information submitted.
In addition, no specific regulation requires an evaluation of the
breakthrough potential of impoundments. However, in practice, MSHA appears
to have the jurisdiction to require an evaluation of breakthrough potential
through indirect regulatory language. The regulations require that