Current Regulatory Framework - Coal Waste Impoundments: Risks, Responses, and Alternatives - page 25

the engineering plans contain “other information pertinent to the impoundment
itself, including any identifiable natural or manmade features which could affect
operation of the impoundment” (30 C.F.R. § 77.216-2(7)), and that MSHA be
presented with “other such information pertaining to the stability of the
impoundment and impounding structure which may be required” (30 C.F.R. §
77.216-2(18)). While neither of these requirements specifically obliges
consideration of the potential interactions between the surface impoundment
and underground mine workings, the language does allow MSHA the ability to
require such evaluations.
SURFACE MINING CONTROL AND RECLAMATION ACT
SMCRA (30 U.S.C. §§ 1201 to 1328) established OSM within the
Department of the Interior and assigned the agency authority to implement a
national program to regulate the surface effects of coal mining activities.
Congressional intent in adopting SMCRA was to protect “society and the
environment from the adverse effects of surface coal mining operations” (30
U.S.C. § 1202 (a)). This legislative and regulatory direction complements the
intent of the Federal Mine Safety and Health Act, which provides for the health
and safety of miners, by adding the SMCRA directive to protect the public and
to limit environmental effects. The program authority has been delegated to the
states to perform the administrative and enforcement functions, but OSM
retains oversight of program adequacy and administers the program in states
without primacy.
SMCRA specifies that, because of the diversity in terrain, climate, biology,
geochemistry, and other physical conditions under which mining operations
occur, the primary governmental responsibility for regulating surface coal
mining and reclamation operations should rest with the states (30 U.S.C. § 1201
(f)). To achieve primary regulatory responsibility, often referred to as primacy,
a state must develop a program that demonstrates the state's capability to carry
out the relevant provisions of SMCRA (30 U.S.C. § 1253). Once the Secretary
of the Interior approves a state regulatory program, OSM assumes an oversight
role, making inspections as necessary to evaluate the state's administration of
their program and taking corrective action when necessary.
Currently, 24 states have primacy: Alabama, Alaska, Arkansas, Colorado,
Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maryland, Mississippi,
Missouri, Montana, New Mexico, North Dakota, Ohio, Oklahoma,
Pennsylvania, Texas, Utah, Virginia, West Virginia, and Wyoming. Most of the
regulatory requirements of these state programs are